judgement:
Civil Appeal No. 996 of 1979 From the Judgment and Order dated 26.10.78 of the Madhya Pradesh High Court in Misc.
Petition No. 176/74.
S.N. Kacker, S.K. Ghambir and Ashok Mahajan for the appellant.
T.U. Mehta, S.S. Khanduja, R.D. Jain, Mehfooz Khan and Yashpal Dhingra for the respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
Respondent 1 was appointed as an Agent of the appellant Bank, which is a co operative society registered under and governed by the provisions of the Madhya Pradesh Co operative Societies Act.
By an order dated June 5, 1968 passed by one S.P. Jain, the services of respondent 1 were terminated on the ground that he had over stayed the leave granted to him.
Aggrieved by that order, respondent 1 raised a dispute under section SS(2) of the Act, before the Registrar of the Co operative Societies.
The Registrar referred the matter to the Deputy Register, who by an order dated February 27, 1972, allowed the claim of respondent 1 on the ground that the order terminating the services was not in accordance with Rules 44 and 45 of Co operative Bank Employees Service Rules.
He also ordered the reinstatement of respondent 1 with full back salary and allowances.
In an appeal filed by the Bank, the Addl.
Registrar took the view that the only remedy which was open to respondent 1 was to claim damages for wrongful termination of his services and that, therefore, he could not be reinstated in service Respondent 1 than filed an appeal before the Board of Revenue which held by an order dated August 28, 1974, that, S.P. Jain who held the enquiry against respondent 1 and passed the order terminating his services had no power to do so.
The Board of Revenue set aside the order of termination and remanded the matter to the Bank for disposal in accordance with law.
The writ petition filed by the Bank in the High Court of Madhya Pradesh was dismissed on October 26, 1973.
According to the High Court, since section P. Jain had no authority to hold the enquiry or to pass the impugned order of dismissal, the said order had no existence in the eye of law and, 858 therefore, respondent 1 should be deemed to be in service and be reinstated.
Aggrieved by the judgment of the High Court the Bank has filed this appeal.
We are in agreement with the conclusion to which the High Court has come, though for somewhat different reasons which are as follows: "The Board of Directors of the appellant Bank was superseded by the Registrar of the Co operative Societies by an order dated July 25, 1967 and its powers were vested in Madhya Pradesh State Cooperative Bank, Jabalpur, which is an Apex Bank, as "officer in charge" of the superseded Bank.
By Resolution No. 23 dated May 19, 1968, the Apex Bank confirmed the action of its Chairman/Vice Chairman in deputing, amongst others S.P. Jain as the Chief Executive officer of the superseded Bank.
The Apex Bank had no authority or power so to appoint S.P. Jain for two reasons: In the first place, the Apex Bank, being an appointee of the Registrar, had no authority to divest itself of the power conferred upon it by the Registrar and to invest S.P. Jain with that power.
The only authority which could have conferred the necessary power.
On S.P. Jain was the Registrar.
The Registrar did not confer that power upon S.P. Jain under Section 53(4) of the Act".
In the result, this appeal is dismissed with costs.
We would like to add that as long as 16 years have passed since the impugned order was passed and that too by a person who had no authority to pass it.
Secondly, the consensus of opinion of the various authorities which have dealt with this matter is that, in overstaying the leave granted to him, respondent l was not guilty of "misconduct".
It is desirable and prudent that no further proceedings be taken against respondent 1 for the alleged default on his part, which is the subject matter of the present proceedings.
We modify the order of the High Court by directing that respondent l will be entitled to fifty per cent of the , back wages and i allowances only from June 5, 1968 until September 30, 1984.
The appellant will back respondent 1 in its service with effect from October 1, 1984.
M.L.A. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The Board of Directors of the appellant bank was superseded by the Registrar of the Cooperative Societies and its powers were vested in the M.P. State Cooperative Bank which is an Apex Bank as "officer in charge" of the superseded bank.
The Apex Bank appointed one S.P. Jain as the Chief Executive officer of the appellant bank.
Respondent No. 1, an employee of the appellant bank, was dismissed from service by S.P. Jain on the ground that he had overstayed the leave granted to him.
The Dy.
Registrar of Cooperative Societies set aside the said order of dismissal and directed reinstatement of respondent No. 1, but it was reversed by the Addl.
Registrar in appeal by the appellant Bank.
In further appeal by Respondent No. 1 the Board of Revenue set aside the order of termination.
The High Court in the Writ Petition filed by appellant Bank agreed with the Board of Revenue and also ordered reinstatement of Respondent No. 1.
Dismissing the appeal by the appellant Bank and modifying the order of the High Court, ^ HELD: The Apex Bank had no authority or power so to appoint S.P. Jain for two reasons: In the first place, the Apex Bank, being an appointee of the Registrar, had no authority to divest itself of the power conferred upon it by the Registrar and to invest S.P. Jain with that power.
The only authority which could have conferred the necessary power on S.P. Jain was the Registrar.
The Registrar did not confer that power upon S.P. Jain under section 53 (4) of the Act.
Therefore the said order had no existence in the eye of law.
[858D E] 857


judgement:
ition (Criminal) No. 916 (Under Article 32 of the Constitution of India) Sunil K. Jain and Diwan Balak Ram for the Petitioners.
Manoj Swarup and Dalveer Bhandari for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Shri Ram Narain Dixit in this petition under Article 32 of the Constitution challenges the detention of Ajay Dixit, his son in the District Jail of Agra, under the .
The District Magistrate, Agra passed a detention order and served on Ajay Dixit hereinafter called the detenu under section 3 of the , hereinafter 846 called the Act, on six different grounds.
The grounds mentioned therein are as follows: "1.
That on 10.4.1981 at 10.30 p.m. you alongwith your companions surrounded Shri Kanhaiya Lal Sharma resident of Ferozepur and fired at him with the intention of killing him but he escaped slightly.
In this connection a case under S.307 of I.P.C. was lodged with the Police Station and is pending the trial in the court against you.
That on dated 27.9.82 at 3.10 p.m. you collected goondas in your house in the town of Ferozabad and when the police party reached in order to arrest the goondas you fired at the police party on which a case against you under section 307/34 of Indian Penal Code is pending the trial in the court.
That on dated 27.9.82 you were arrested by the police in the town of Ferozabad and a country made Tamancha and live cartridges without licence were recovered from your possession in respect of which a case against you under S.25/27 of Arms Act is pending the trial in the court.
That on 15.1.83 at 5.00 p.m. you alongwith your brother shot dead Shri Naresh Paliwal brother of Shri Sanjeev Kumar Paliwal resident of Ferozabad.
In this respect a case against you under S.302 of Indian Penal Code was registered in the Police Station and is pending trial in the court.
That on 31.10.83 Shri Sanjeev Kumar Paliwal lodged a report with the Thana Ferozabad (North) that he was carrying the profession of photography.
12 13 days before a boy took him away for the purpose of a photograph to a room where you and your associates were present and you forcibly compelled Mrs. Sanjeev Kumar Paliwal at the point of revolver to take a nude snap of immoral act being committed by Umesh with Sanjeev Kumar Gupta.
In this respect a case against you under Section 342/286 of Indian Penal Code was registered and the same is under trial.
That on 26.2.84 at about 5.00 p.m. you alongwith your associates in the town of Ferozabad attempted to murder 847 by sprinkling kerosene oil and by lighting it with a match box Shri Jai Kumar Jain resident of Ferozabad in order to recover your so called money in respect of which a case against you under S.307 of Indian Penal Code was register ed and is under trial.
" On the above grounds the District Magistrate by his order dated 29.2.1984 stated that he was satisfied that the said Ajay Dixit was likely to act in a manner prejudicial to maintenance of public order and that it was necessary to detain him with the object of preventing him from acting prejudicially to the maintenance of public order.
The said order was passed under Sub section (2) of Section 3 of The ., and the petitioner was detained from 29th February, 1984.
On March 14th, 1984 the petitioner submitted his representation to the Advisory Board.
On 23rd march, 1984, the State Government rejected the representation of the detenu.
The petitioners alleged that the procedures and formalities provided under the Act had not been made available and applied in the case of the detenu.
The petitioner states that the detenu was detained and the grounds mentioned in the order were illusory, insufficient and not bonafide and in any case irrelevant for the detention of the detenu for the maintenance of public order.
Subsection (2) of Section 3 of the Act empowers the Central Government and the State Governments, if satisfied with respect to any person, with a view to preventing him "inter alia from acting in any manner prejudicial to the maintenance of public order", it is necessary to do so to make an order directing such person be detained.
There are decisions which have dealt with limits and the scope of this rather drastic power of preventive detention vested in the Government and which is sanctioned under the provisions of Article 22(3), (4) and (5) of the Constitution.
There are various procedural safeguards like making known to the detenu within a particular time the grounds of detention and giving him information that he can make representation against the detention within a particular time and further that the representation should be placed before the Advisory Board and the opinion of the Advisory Board should be placed before the Government concerned Land thereafter decision taken.
The petitioner made some other averments of non com 848 pliance with the procedural safeguards under the Act.
The main ground in the petition is that the petitioner was not informed of the rights available to him nor of the reasons or order passed on his representation.
In view of the averments made in the petition and the affidavits filed on behalf of respondent, it is not necessary in the facts and circumstances of this case to discuss these in detail.
Preventive detention is an exception to the normal procedure.
It is sanctioned and authorised for very limited purpose under Article 22(3)(b) with good deal of safeguards.
The exercise of that power of preventive detention must be with circumspection and care.
We are governed by, the Constitution and our Constitution embodies a philosophy of government and a way of life.
The working of this Constitution requires understanding between those who exercise power and the people over whom or in respect of whom such power is exercised.
The purpose of all government is to promote common well being and it must sub serve the common good and it is necessary therefore to protect individual rights as far as consistent with security of the society and an atmosphere where the even tempo of the community is least endangered.
These provisions should be so read as to imply grant of power and also limit the user of the power.
The observance of a written law about the procedural safeguards for the protection of the individual is the normal and high duty of a public official.
But in all circumstances is not the highest.
The law of self preservation and national security often claimed a higher priority.
"To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us, thus absurdly sacrificing the end to the means", Thomas Jefferson Writings (Washington ed.
V. page 542 545 Sometimes the executive may have to act without normal safeguards for ordinary detention and resort to preventive detention when the necessity demands it, but it must explain its action when called upon in judicial review and ask for acquittance, The question of difference between 'law and order ' and 'public order ' has come up many a times ill judicial decisions.
In the case of Dr. Ram Manhohar Lohia vs State of Bihar & Ors., a Constitution Bench of this court had to consider this controversy in the context of Rule 30 (i) (b) of the Defence of India Rules, 1962.
Mr. Justice Sarkar who was a party to the majority view 849 observed that it was not necessary to take too technical a view but one should proceed in a matter of substance, if a man could be deprived of his liberty by the simple process of making of an order he could only be so deprived of it if the order is in terms of rule.
If for the purpose of justifying the detention such compliance by itself is enough, non compliance must have a contrary effect.
A mere reference in the detention order to the rule is not sufficient to show that by "law and order" what was meant was public order.
The learned judge observed that the order no doubt mentioned another ground of detention namely prevention of acts and so far as it did so, it was clearly within the rule.
But the order has notwithstanding this, to be held illegal, though it mentioned a ground on which a legal order of detention could have been passed, because it could not be said that in what manner and to what extent the valid and invalid grounds operated on the mind of the detaining authority.
Of course, as the present law stands if one of the grounds is invalid the order of detection can not be set aside merely on that ground.
The National Security (Second Amendment) Act, 1984 was assented to by the President on 31st August, 1984 and it provided that it should be deemed that the Act had come into force on the 21st of June, 1984.
Section 5A of the Act by virtue of Section 2 of the National Security (Second Amendment) Act, reads as follows: "5A.
Where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly: (a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are (i) Vague, (ii) non existent, (iii)not relevant, 850 (iv) not connected or not proximately connected with A such person, or (v) invalid for any other reasons whatsoever.
and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention: (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
" The Act specifically makes the provision of Section SA of the amended portion of the Act applicable in case of an order of detention whether passed before the commencement of the ' National Security (Second Amendment) Act, 1984 or after it.
Therefore in this order of detention section 5A would be applicable, as the order was passed before the coming into force of the National Security (Second Amendment) Act, 1984.
Justice Hidayatullah, as the learned Chief Justice then was, and Justice Bachawat observed in the said decision that the satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer, to a petition for a writ of habeas corpus.
But when from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers, there is need to cause and enquire.
The enquiry then is, not with a view to investigate the sufficiency of the materials but into the officer 's notions of his power.
If the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order.
When the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred, the action must comply not only with the substantive requirements of law but it should be with those forms which alone can indicate the substance.
The learned judges further observed that the contravention 'of law ' always affects 'order ' but before 851 it could be said to affect 'public order ', it must affect the community or the public at large.
One has to imagine three concentric circles, the largest representing "law and order", the next representing "public order" and the smallest representing "Security of State ' '.
An act may affect "law and order" but not "public order", just as an act may affect 'public order" but not "Security of the State".
Therefore one must be careful in using these expressions.
In the decision of this Court in this case of Arun Ghosh vs State of West Bengal, the question was whether the grounds mentioned could be construed to be breach of public order and as such the detention order could b e validly made.
There the appellant had molested two respectable young ladies threatened their fathers life and assaulted two other individuals.
He was detained under section 3(2) of the in order to prevent him from acting prejudicially to the maintenance of public order.
It was held by this Court that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society.
The test is: Does it lead to a disturbance of the even tempo of the life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquillity of society.
This court found in that case however reprehensible the appellant 's conduct might be, it did not add up to the situation where it may be said that the community at large was being disturbed.
Therefore, it could not be said to amount to an apprehension or breach of public order, and hence, he was entitled to be released.
The law on this point was stated by this Court in the case of Ram Ranjan Chatterjee vs State of West Bengal as follows: "lt may be remembered that qualitatively, the acts which affect 'law and order ' are not different from the acts which affect 'public order '.
Indeed, a state of peace or orderly tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by 852 the Government, is a feature common to the concepts of 'law and order ' and 'public order '.
Every kind of disorder or contravention of law affects that orderly tranquillity.
The distinction between the areas of 'law and order ' and 'public order ' as pointed by this Court in Arun Ghosh vs State of West Bengal, is one of degree and extent of the reach of the act in question on society".
lt is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.
If tile contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only.
These concentric concepts, of 'law and order ' and 'public order ' may have a common 'epicentre ', but it is the length magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it is an act affecting 'public order ' from that concerning 'law and order '.
Reliance was also placed upon Jaya Mala vs Home Secretary Government of J & K.
In that case also a criminal case had been started on the basis of an incident.
The Court felt that the grounds of detention were such grounds upon which no valid order can be sustained.
It has been further observed at page 540 as follows: "But it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity prejudicial to the maintenance of public order. .
If every infraction of law having a penal sanction by itself is a ground for detention danger looms larger that the normal criminal trials, and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law.
" See also in this connection the observations of this Court in Alijan Mian vs District Magistrate, Dhanbad and others.
Stale incidents cannot also be a valid ground for sustaining detention.
See in this connection the observations of this Court 853 in Kamkalar Prasad Chaturvedi vs State of M.P. and Another.
When a challenge is made to detention on the grounds that the stale and irrelevant grounds were the basis for detention then the detenu is entitled to be released and to that extent the order is subject to judicial review not on the ground of sufficiency of the grounds nor the truth of the grounds but only about the relevancy of the grounds which would come under judicial scrutiny.
Bearing the aforesaid principles in mind, the first ground mentioned in the order of detention was that the detenu along with the companions surrounded one Kanhaiya Lal Sharma and had committed an offence under Section 307 of Indian Penal Code on or about 10th April, 1981.
Apart from the fact that the ground was old and stale, it is irrelevant inasmuch as the detenu has been acquitted of the charge before the detention order was passed.
He was acquitted on 2nd February, 1984 whereas the detention order was passed on 29th February.
The respondents in their counter do not dispute this position but state that the information had not reached the detaining or the recommending authority.
This is unfortunate.
The other grounds mentioned in the detention order no doubt are also unfortunate and the conduct alleged of the detenu is reprehensible.
Such conducts, if true, are not of such nature as could possibly endanger 'public order '.
The incident was alleged to have happened ten or twelve days prior to 31st October, 1983, yet the detention order was passed quite some time thereafter in February, 1984.
In certain criminal charges mentioned in grounds numbers 2,3, 4 and 5, there is no difficulty in arresting the detenu.
The grounds mentioned therein are not of such magnitude as to amount to apprehend disturbance of public order, nor was there any evidence that for any conduct of the detenu public order was endangered, or there could be reasonable apprehension about it.
As emphasised by the decisions of this Court, it is important to bear in mind the difference between law and order situation and maintenance of public order.
The act by itself is not determinate of its gravity.
In its quality it may not differ from another but its potentiality may be very different.
Therefore the question whether a man has only committed a breach of law and order or acted in a manner likely to the disturbance of public order is a question of degree of the reach of the act upon 854 society.
In this connection it may be appropriate to refer to the observations in the case of Arun Ghosh vs State of West Bengal (supra) at page 290 as follows: "It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.
The French distinguish law and order and public order by designating the latter as order publique.
The latter expression has been recognised as meaning something more than ordinary maintenance of law and order.
Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large.
He drew an analogy between public and private crime.
The analogy is useful but not to be pushed too far.
A large number of acts directed against persons or individuals may total up into a breach of public order.
In Dr Ram Manohar Lohia 's case examples were given by Sarkar, and Hidayatulla, JJ.
They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other.
It is always a question of degree of the harm and its effect upon the community.
The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? This question has to be faced in every case on facts.
There is no formula by which one case can be distinguished from another.
" It is, therefore, necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order.
In view of the nature of the allegations mentioned in the 855 grounds, we are of the opinion that these are not such a nature as to lead to any apprehension that the even tempo of the community would be endangered.
Therefore the detention of the detenu under the provisions of Section 3(2) of the Act was not justified.
There are various allegations of mala fide in this application namely that one of the relations of Advocate General of U.P. was involved.
It is alleged that the Advocate General of U.P. is the father in law of a local resident with whom the family of the detenu had land dispute due to which many attempts on the life of the detenu and his brother had been caused to be made by the Advocate General.
In the view we have taken it is not necessary for us to go into these questions.
There are some submissions about the procedural irregularities.
Though on the whole we do not find much substance but it is not necessary also to detain ourselves on the examination of these question.
In the aforesaid view of the matter, the detention order dated 29th February, 1984 which is Annexure I to the petition is hereby quashed.
The detenu should be set at liberty forthwith.
M.L.A. Petition allowed.

summary/full:
Section 3 (2) of the (for short, the Act) empowers the Central Government and the State Governments, if satisfied With respect to any person, with a view to preventing him, "inter alia from acting in any manner prejudicial to the maintenance of public order", it is necessary to do so to make an order directing such person to be detained.
Section 5 A of the Act by virtue of section 2 of the National Security (Second Amendment) Act provides.
(i) that where a person has been detained under section 3 of the Act on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and that such an order shall not be deemed to be invalid or inoperative merely because one or some of he grounds are vague, non existent, non relevant, not connected or invalid for any reasons whatsoever and the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.
The District Magistrate, Agra passed an order of detention of Ajay Dixit, the detenu, under section 3 (2) of the Act on 29th February 1984 stating that he was satisfied that the detenu was likely to act in a manner prejudicial to maintenance of public order and that it was necessary to detain him with the object of preventing him from acting prejudicially to the maintenance of public order.
The grounds of detention were (i) that on 10.4.81 the detenu alongwith his companions surrounded Shri Kanhaiya Lal Sharma with the intention of killing him but the latter escaped slightly; (ii) that on 27.9.82 he fired at the police party from his house where the policy had gone to arrest goondas collected by him; (iii) That on his arrest on 27.9.1982 a country made 844 Tamancha and two live cartridges without licence were recovered from him; (iv) That on 15.1.83 he shot dead Shri Naresh Paliwal; (v) That on 31.10.1983, he forcibly compelled Mrs. Sanjeev Kumar Paliwal at the point of a revolver to take a nude snap of immoral act being committed by Umesh with Sanjeev Kumar Gupta; and (vi) That on 26.2.1984, he attempted to murder Shri Jai Kumar Jain.
The grounds of detention also stated the fact that criminal cases were pending trial in the court in respect of the above criminal acts committed by the detenu.
The petitioner father of the detenu, moved this Court under Article 32 of the Constitution for a writ of habeas corpus directing the release of the detenu from detention.
He contended, inter alia, that the grounds mentioned in the order wore illusory, insufficient and not bona fide and in any case irrelevant for the detention of the detenu for the maintenance of public order.
Allowing the writ petition, ^ HELD: (1) The satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer to a petition for a writ of habeas corpus.
But when a challenge is made to a detention on the grounds that the stale and irrelevant grounds were the basis for detention, then the detenu is entitled to be released and to that extent the order is subject to judicial review not on the ground of sufficiency of the grounds nor the truth of the grounds but only about the relevancy of the grounds which would come under judicial scrutiny.
It is, therefore, necessary in each case to examine the facts to determine not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order.
[850F; 853A B; 854G H] (2) It is important to bear in mind the difference between the law and order situation & maintenance of public order.
The contravention 'of law ' always affects 'order, but before it could be said to affect 'public order ' it must affect the community or the public at large.
The question whether a man has only committed a broach of law and order or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society.
The test is: Does it lead to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of the public order.
Or, does is affect merely an individual without affecting the tranquillity of society.
It may be remembered that qualitatively, the acts which affect 'law and order ' are not different from the acts which affect 'public order '.
Indeed a state of peace or orderly tranquillity which prevails as a result of the observance or enforcement of internal laws and regulations by the Government is a feature common to the concepts of 'law and order.
and 'public order ' Every kind of disorder or contravention of law affects that orderly tranquillity.
The distinction between the areas of 'law and order ' and 'public order ' "is one of degree and extent of the reach of the act in question on society".
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.
If the contravention in its effect is confined only to a few individuals directly involved as 845 distinguished from a wide spectrum of the public, it would raise a problem of law and order only.
These concentric concepts of 'law and order ' and 'public order ' may have a common 'epicentre ', but it is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order ' from that concerning law and order.
[851A B; D E; G H; 852A D] (3) In the instant case, apart from the fact that the first ground was old and stale, it is irrelevant in as much as the detenu has been acquitted of the charge before the detention order was passed.
The other grounds mentioned in the detention order no doubt are also unfortunate and the conduct alleged of the detenu is reprehensible.
Such conducts, if true, are not of such nature which could possibly endanger 'public order '.
The grounds mentioned therein are not of such magnitude as to amount to apprehend disturbance of public order, nor was there any evidence that for any conduct of the detenu public order was endangered, or there could be reasonable apprehension about it.
In view of the nature of the allegations mentioned in the grounds, this Court is satisfied that these are not of such a nature as to lead to any apprehension that the even tempo of the community would be endangered.
Therefore, the detention of the detenu under the provisions of section 3 (2) of the Act was not justified.
[853C D; 855A] Dr. Ram Manohar Lohia vs State of Bihar & Ors Arun Ghosh vs State of West Bengal , Ram Ranjan Chatterjee vs State of West Bengal ; at 146 Jaya Mala vs Home Secretary Govt.
of J & K. , Alijan Mian V. District Magistrate, Dhanbad and Others [1983] 4 S.C.C. p 301.
at 308 and Kamlakar Prasad Chaturvedi vs State of M.P. and An other.
[1983] 4 S.C.C. 433. followed.


judgement:
N: Criminal Appeal No. 476 of 1984.
Appeal by Special leave from the Judgment and Order dated the 6th December, 1983 of the Allahabad High Court in Appeal No. 611 of 1976.
Dr. N. M. Ghatate and C.K. Ratnaparkhi for the Appellants.
Manoj Swarup Dalveer Bhandari and A.K. Sanghi for the Respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
It is necessary to record this short order so that it may be known as to what an incredible amount of ingenuity is exercised by the people to secure false acquittals.
A person by the name of Kunwar Bahadur was murdered in the village of Bamori Kalan, District Jalaun, on July 18, 1971.
The appellants were convicted for that murder and were sentenced to suffer imprisonment for life.
On June 2, 1983, dead body was found in Vidisha, Madhya Pradesh.
A letter purported to have been written by one Kunwar Bahadur was recovered from the person of the deceased.
On the next day, June 3, 1983, a Hindi daily called 'Nav Bharat ' carried a news item to the effect that the dead body of one Kunwar Bahadur Singh was found in Vidisha in suspicious circumstances and that the letter which was recovered from the person of the deceased showed that he was repentant.
This news item is alleged to have come to the notice of the relatives of the appellants, who contacted the Vidisha police.
The contention of the appellants is that Kanwar Bahadur, for whose murder they were convicted in 1971 was alive for 12 years thereafter and that his dead body was found on June 2, 1983.
By this appeal, they pray for an order of acquittal, or rather, for an order setting aside their 12 year old conviction on the ground that they were convicted for a murder that never was. 864 Since this appeal raised a question of serious concern to the administration of justice, an order was passed by this Court on April 11, 1984 directing the District Magistrate, Vidisha, to hold an inquiry into the allegation as to whether the person called Kunwar Bahadur, who was alleged to have been murdered in 1971, was found alive after the alleged murder and was thereafter murdered in some other incident which took place in 1983.
The District Magistrate, Vidisha, Shri O.P. Dube, has submitted a report which deserves high praise.
He has recorded statements of 18 persons and has examined documents leading to the conclusion that the person whose body was found on June 2, 1983 is not the person who was murdered in 1971 and for whose murder the appellants were sentenced to life imprisonment.
It is clear from the report of the District Magistrate that the letter which was found on the person of the dead body on June 2, 1983 is a forged and fictitious document manufactured for the purpose of getting over the order whereby the appellants were convicted for the murder of Kunwar Bahadur in 1971.
The age of Kunwar Bahadur who was murdered in 1971 does not tally with the age of the person alleged to be Kunwar Bahadur whose dead body was found on June 2, 1983.
The close relatives of the real Kunwar Bahadur who was murdered in 1971, have stated before the District Magistrate that the handwriting of the letter found on the person of the dead body which was discovered on June 2, 1983 is not that of Kunwar Bahadur who was murdered in 1971.
After the receipt of the District Magistrate 's Report, this appeal came up for hearing on August 13, 1984 when Dr. N.M. Ghatate, appearing for the appellants, asked that the District Magistrate should be directed further to show the photograph of the dead body which was discovered on June 2, 1983, to the close relatives of Kunwar Bahadur in order to remove any doubt on the question whether the person whose dead body was found in 1983 is the very Kunwar Bahadur for whose murder the appellants were convicted.
Seeing the plausibility of this submission, a direction was given by this Court to the District Magistrate to do the needful and submit a further report to this Court.
In accordance with the aforesaid direction, the District Magistrate showed the photograph of the dead body which was 865 found on June 2, 1983 to Kaushilya Rani, Jamana Das Lodhi and Sughar Singh who are respectively the widow, brother and son of Kunwar Bahadur who was murdered in 1971.
The brother and son of Kunwar Bahadur stated that the photograph of the dead body which was discovered on June 2, 1983 is not that of Kunwar Bahadur.
Kaushilya Rani stated before the District Magistrate that her husband was tall and slim, that he was not fat and that his complexion was fair.
However she was unable to say whether the photograph shown to her was that of her husband, since the impression in the photograph was not clear.
On the basis of these statements, the District Magistrate has submitted a Supplementary Report to this Court stating that the photograph of the dead body is not that of Kunwar Bahadur.
We had directed the District Magistrate to forward to us, along with his report, the photograph of Kunwar Bahadur who was murdered in 1971 and the photograph of the dead body which was found in 1983.
Having compared these two photographs, which are annexures and 10 to the report of the District Magistrate, we are of the opinion that the conclusion to which the District Magistrate has come is correct.
There is no resemblance between the two photographs.
The District Magistrate has stated that the officers of the Vidisha Police Station are guilty of a serious lapse in not registering the crime of murder when a dead body was found in their jurisdiction on June 2, 1983.
As observed by him in this report which is drawn with commendable care, the entire case is shrouded in suspicion and deserves to be inquired into by the higher Police authorities.
In the result, we are of the opinion that Kunwar Bahadur for whose murder the appellants were convicted 13 years ago, is not the same person whose dead body was found on June 2, 1983 in Vidisha.
The appeal is accordingly dismissed.
S.R. Appeal dismissed.

summary/full:
The appellants were convicted and sentenced to suffer imprisonment for life for the murder of a person by the name of Kunwar Bahadur in the village of Bamori Kalan, District Jalaun on July 18, 1971.
Based on a news item carried by a Hindi daily called 'Nav Bharat ' on June 3, 1983, that the dead body of one Kunwar Bahadur Singh was found in Vidisha in suspicious circumstances and that a letter purported to have been written by one Kunwar Bahadur Singh was recovered from the person of the deceased, the appellants filed a petition before the High Court of Madhya Pradesh, praying for their acquittals contending that Kunwar Bahadur Singh for whose murder they were convicted in 1971 was alive for twelve years thereafter and, therefore, their conviction was illegal.
The High Court dismissed the petition.
Hence the appeal by Special Leave of the Court.
Dismissing the appeal, the Court, ^ HELD; 1:1.
When a person convicted of murder raised the question that he has material to show that he was convicted for a murder that had never taken place, as, for example, by showing that the person who was alleged to have been murdered is in fact alive the Supreme Court has the jurisdiction, in appropriate cases, to call for further data from the concerned authorities in order to examine the contention of the convict.
This jurisdiction on which the Supreme Court can exercise, though with circumspection, is in order to do complete justice in any matter which is pending before it or which has been disposed of by it.
[863G H, 864A] 1: 2.
The instant case, however, is an example of what an incredible amount of ingenuity is exercised by the people to secure false acquittals.
The two reports called for from the District Magistrate, Vidisha, and the two photographs of 863 the two dead bodies found in 1971 and 1983, respectively make it clear that, (1) Kunwar Bahadur Singh for whose murder the appellants were convicted thirteen years ago is not the same person whose dead body was found on June 2, 1983 in Vidisha and (2) The letter which was found on the person of the dead body on June 2, 1983 is a forged and fictitious document manufactured for the purpose of obtaining false acquittals.
[863D, 864E, 865E F]


judgement:
N: Criminal Appeal No. 224 of 1974.
From the Judgment and Order Dated 8.1.73 of the Rajasthan High Court in Criminal Appeal No. 776 of 1970.
Naunit Lal & Kailash Vasdev.
for the appellant.
B.D. Sharma for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
Four persons were tried by the learned Sessions Judge, Bhilwara, under section 302 read with section 34 of the Penal Code.
The learned Judge acquitted three out of the four accused and convicted only one of them, namely, Kanahiya Lal.
The High Court of Rajasthan confirmed the conviction of Kanahiya Lal, as also the acquittal of two out of the three persons who were acquitted by the Sessions Judge.
The High Court, however, set aside the acquittal of the appellant, convicted him under section 302 read with section 34 of the Penal Code and sentenced him to life imprisonment.
Since the High Court has set aside an order of acquittal and has sentenced the appellant to life imprisonment, it is necessary to consider whether two views of the evidence are reasonably possible and whether, the High Court was justified in setting aside the order of acquittal passed by the trial Court in favour of the appellant.
Having approached the case and assessed the evidence from that point of view, we are of the opinion that it is impossible to agree with the view taken by the trial court.
The High Court has specifically dealt with reasons given by the trial court in support of the order of acquittal and has demonstrated in a good measure as to why those reasons cannot be accepted.
We concur in the High Court 's appreciation of evidence.
The incident out of which the prosecution arose happened at about 8 p.m. On September 29, 1968 at Bhilwara Rajasthan, leading to the death of one Gyanchand.
The motive for the offence is alleged to be that Gyanchand 's brother, Nemi Chand, owed money to accused Nos. 3 and 4, Ram Niwas and Badri Lal.
Nemi Chand was evading to pay the debt which created bitterness between the two brothers on one hand and accused Nos. 3 and 4 on the other.
The latter, it is alleged, procured the help of the appellant and of Kanahiya Lal in doing Gyanchand to death.
861 The prosecution examined a few witnesses in support of its case but it is unnecessary to refer to the evidence of each one of them.
The most important witness in the case is Bodu Lal (P.W. 2).
He is an independent witness, in whose cycle rickshaw the appellant and the co accused Kanahiya Lal travelled from the hotel of Shankar Maharaj to the scene of offence.
Bodu Lal identified the appellant in the identification parade.
According to his evidence, the appellant was wearing a yellow baniyan at the time of the incident.
When the appellant was arrested.
a yellow baniyan was found on his person and it was stained with human blood.
A knife stained with human blood was also recovered from his person.
The High Court has convicted the appellant relying on the evidence of Bodu Lal, as corroborated by the discovery of the blood stained baniyan and knife.
This evidence seems to us unassailable.
Accordingly, we dismiss this appeal and confirm the judgment of the High Court.
S.R. Appeal dismissed.

summary/full:
The appellant along with Kanahiya Lal, Ram Niwas and Badri Lal was charged under Section 302 read with Section 34 Indian Penal Code and tried for the offence of murder of one Gyanchand by the Sessions Judge, Bhilwara, Rajasthan.
The learned Judge convicted and sentenced Kanahiya Lal alone to life imprisonment and acquitted the rest.
In appeal, the High Court of Rajasthan, while confirming the conviction of Kanahiya Lal as also the acquittal of two out of the three persons, convicted and sentenced the appellant also to life imprisonment.
Hence the appeal under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970.
Dismissing the appeal, the Court, ^ HELD: Since the High Court set aside an order of acquittal and sentenced the appellant to life imprisonment it is necessary for the Supreme Court to consider whether two views of the evidence are reasonably possible and whether, the High Court was justified in setting aside the order of acquittal passed by the trial Court in favour of the appellant.
Approaching the case and assessing the evidence from that point of view, it is clear, that the conviction of the appellant in view of the evidence of Bodu Lal as corroborated by the discovery of the blood stained baniyan and knife is unassailable.
He is an independent and the most important witness in whose cycle rickshaw the appellant and the co accused Kanhiya Lal travelled from the hotel of Shankar Maharaj to the scene of offence.
Bodu Lal identified the appellant in the identification parade and his evidence as to the colour of baniyan worn by the appellant at the time of the incident tallied with that of the one stained with human blood and recovered from the accused.
A knife stained with human blood also recovered from his person confirmed his guilt.
[860E F, 861 B C] 860


judgement:
Civil Appeal Nos.
1353 & 1354 of 1973.
Appeals from the Judgment and Order dated the 6th December, 1972 of the Mysore High Court in Writ Petitions Nos.
3964 & 3996/1970.
S.T: Desai, D.N. Mishra and Mrs. Verma for the Appellants.
M. Veerappa for the Respondents.
The Judgment of the Court was delivered by AMARENDRA NATH SEN, J.
The question of constitutional validity of the Mysore Sales Tax (Amendment) Act, 1969 (Mysore Act of 1969), (hereinafter referred to as the Act) falls for determination in these two appeals preferred by the appellants with certificate granted by the High Court under article 133(1) of the Constitution.
The question arises under the following circumstances: The appellants are Excise Contractors who had secured excise privilege of retail sale of Toddy, Arrack or Special Liquor.
The State Government has the monopoly of the first sale of Arrack which is country liquor other than Toddy.
The manufacture of Arrack by distillation is done in the State under State control and the entire quantity manufactured by distillation in the State is sold to the State Government which in its turn supplies Arrack to bonded depots in Taluks.
Under the Mysore Excise Act Arrack is liable 829 to excise duty at the rates prescribed by the Government.
The State does not collect excise duty from the distillers.
From the distillery arrack is transferred to Bonded Depots and excise duty together with cesses thereon is collected from the contractors who are given the privilege or right to effect retail sales of Arrack.
The exclusive privilege of retail vending of Arrack for each excise year which commences on the first day of July and ends on 30th June of the following year, is sold by the State by auction.
The successful bidders whose bids are accepted are granted licences for the exclusive privilege of retail vending.
The retail selling price of Arrack by the licensees is fixed by the State Government at or before the time of notifying sales of the exclusive privilege in respect of each year.
The excise duty of arrack together with cesses there on is collected from the licensees before the date of delivery.
Under the terms and conditions governing the licensees, granted to the contractors whose bid is accepted and to whom the license for exclusive privilege of vending arrack is granted, the licensees were required to deposit in the State Treasury under separate heads of account the sales tax payable to the State Government and the excise duty with cesses.
There was no dispute as to the amount of sales tax payable by the licensees upto 1.4.1966.
However, with effect from 1.4.1966, the State Government started collecting sales tax computed on the sale price of Arrack together with excise duty and cesses payable thereon.
So computed sales tax came to about 24 paise a litre which was collected alongwith the price of Arrack sold to the licensees.
Challenging the validity of the collection of the sales tax on the aforesaid basis the appellant filed a writ petition in the High Court of Mysore at Bangalore being writ petition No. 644 of 1966.
As this writ petition No. 644 of 1966.
related to the excise year 1966 67 only, the appellant filed two other writ petitions being writ petitions nos.
1012 and 1013 both of 1966 for subsequent excise years.
These three writ petitions of the appellant along with similar writ petitions filed by other contractors were disposed of by a common judgment by a division Bench of the Mysore High Court on 12th July, 1968.
The Mysore High Court for reasons recorded in the judgment held: "We allow the rest of the petitioners only to the extent of holding that the State Government is not entitled 830 to collect from the petitioners any amount by way of Sales Tax on the following, viz., Excise Duty, Health Cess and Education Cess imposed on arrack or special liquor.
In the said petitions, we hereby issue writs directing the State Government to forbear from collecting from the petitioners any amount representing Sales Tax on the following viz. Excise Duty, Health Cess and Education Cess imposed on arrack or special liquor, and to refund to the petitioners any amount that might have been collected from them, by way of Sales Tax on items of Excise Duty, Health Cess and Education Cess on arrack or special Liquor.
" The Division Bench in the course of the Judgment in D. Cawasji & Co. Mysore vs State of Mysore(1), observed at p. 483: "It is difficult to see how Excise Duty paid, not by the seller but by the purchaser, to the State Government, can become a part of the price at which the goods are sold by that seller to that purchaser.
If that is the true position, we think the State Government cannot, under S.19 or the Sales Tax Act, collect Sales Tax on Excise Duty which is not a part of its selling price.
" Against the judgment of the Mysore Court the State preferred an appeal to the Supreme Court; but the appeal was subsequently withdrawn.
It appears that during the pendency of the appeal the privileges of vending liquor in the excise year 1968 69 were sold without any variation in the price of Arrack fixed by the Government during the previous year at 55 paise a litre.
During the year 1968 69 the State Government collected Sales Tax computing the same @61/2% of the actual sale price without including therein excise duty and cess.
It may be noticed that although the appellants had obtained an order of stay of payment of the disputed sales tax amounts from 27.4.1966 from the High Court, there were various other contractors who had paid the same computed on the sale price of Arrack together with excise duty and the cess.
When the decision of the 831 High Court pronouncing the illegality of the levy and collection of sales tax on the price of Arrack, including in the price the excise duty and cess, became final and conclusive in consequence of the withdrawal of the appeal filed by the State in this Court against the said judgment and decision of the High Court, the State Government became liable to refund the excess amount of sales tax collected to the licensees and contractors.
It appears that the liability of the State to refund the amount collected as sales tax in excess amounted to lacs of Rupees.
Faced with this situation and with the object of avoiding the liability of refund by the State Government of the excess amount so collected, the Governor of the State passed Ordinance No. 3 of 1969 on 17th July, 1969.
The Ordinance was replaced by the impugned Act which came into force on 19th July, 1969.
It will be convenient at this stage to set out the provisions of the Act, which is a short one consisting of four sections, in its entirety.
The Act provides as follows: S.1 (1).
This Act may be called the Mysore Sales Tax (Amendment) Act, 1969.
It shall be deemed to have come into force on the nineteenth day of July, 1969.
In the Second Schedule to the Mysore Sales Tax Act, 1957 (Mysore Act 25 of 1957) in Column 3 of Sl.
No. 39, for the words "Six and a half per cent", the words "Forty five per cent", shall be and shall be deemed to have been substituted with effect from the first day of April, 1966.
Notwithstanding anything contained in any judgment, decree or order of any court or other authority, the sales tax on country liquor other than toddy levied or collected or purported to have been levied or collected shall, for all purposes, be deemed to be and to have always been validly levied or collected in accordance with law, as if this Act had been in force at all material times when such tax was levied or collected and accordingly (a) all acts, proceedings or things done or taken by any 832 authority or officer or person in connection with the levy or collection of such tax, shall, for all purposes, be deemed to be and to have always been done or taken in accordance with law; (b) no suit or proceeding shall be entertained, maintained or continued in any court for the refund of any tax as paid; and (c) no court shall enforce any decree or order directing the refund of any tax so paid.
S.4 The Mysore Sales Tax (Amendment) Ordinance, 1969 (Mysore Ordinance No. 3 of 1969) is hereby repealed.
The Statement of objects and Reasons for the passing of the amendment may appropriately be set out at this stage.
The Statement of Objects and Reasons runs as follows: "Clause (j) of sub rule (4) of Rule 6 of the Mysore Sales Tax Rules, 1957, provided for the exclusion of excise duty paid by a dealer from the computation of his taxable turnover.
By Government Notification No. GSR 882, dated 16th March, 1966, this clause was deleted from the rules with the object of recovering sales tax even on the excise duty portion of the turnover of dealers.
In respect of arrack which falls under entry relating to Sl.
No. 39 of the Schedule, sales are made by Government to licensed contractors and sales tax was recovered from them at 6 1/2% on the total amount payable by them including the excise duty from 1st April, 1966.
The Mysore High Court in W.P. No. 644 of 1966 D. Cawasji & Co. and Others vs The State of Mysore,(1) held that on the sales of arrack, the sales tax cannot be collected on the total amount but has to be collected only on the basic price excluding excise duty on the ground that the duty in such a case does not form part of the sale price but is a separate "levy" made by the Government at the time of releasing the stocks from the Government Bonded warehouses.
Consequently, a considerable amount already recovered may become refundable.
In order to get over the effects of the High Court 833 decision and retain the money already recovered by the Government, it is proposed to enhance the rate of tax on arrak to 45% with retrospective effect from 1st April, 1966.
The enhanced rate of tax on the basic price would be absorbed in the price already recovered, and no additional tax is expected to be realised from this Bill.
Since the Legislature was not in session and in view of the urgency, an ordinance was promulgated.
The Bill is to replace the ordinance.
" The validity of this Amending Act has been challenged on the ground that the Amending Act is unreasonable and arbitrary.
The principal contention raised on behalf of the appellant is that the Amending Act does not seek to rectify or remove the defect or lacuna on the basis of which the collection of the excess sales tax had been set aside by the High Court.
It is argued by the learned counsel for the appellant that the High Court had held that the sales tax could not be levied on collected on Excise duty Health cess and Education cess imposed on Arrack or special liquor and had directed the refund of the amount collected on excise duty and cess which were included in the selling price of arrack.
The learned counsel has submitted that by the amendment the said lacuna or defect of including the excise duty and cess in the price of Arrack on which the sales tax has been charged has not been sought to be removed, as this defect or difficulty could not possibly have been removed, because sales tax could not be levied on excise duty by virtue of the judgment of the High Court.
The learned counsel points out that the appeal which was filed by the State Government against the judgment of the High Court had been withdrawn by the State and as such the judgment of the High Court has become final and conclusive and on the basis of the judgment, a large amount has become refundable by the State to the appellants.
It is the submission of the learned counsel that the amendment has been brought about only for the purpose of circumventing the judgment of the High Court with the object of avoiding the liability to refund the amount wrongfully and illegally collected as sales tax from the appellant by raising the amount of tax from 6 1/2% to 45%.
The learned counsel contends that the increase in the rate of sales tax from 6 1/2% to 45% with retrospective effect is clearly arbitrary and unreasonable.
It is the contention of the learned counsel that if any particular provision of the statute is for some lacuna or defect in the statute declared unconsti 834 tutional or invalid, it is open to the legislature to pass a Validating Act with retrospective effect so that the State may not be saddled with liability of refund or other consequences which may arise as a result of the particular provision being declared invalid.
The learned counsel argues that such a Validating Act with retrospective operation can be passed if the lacuna or the defect, because of which the provision is declared to be unconstitutional and invalid, be properly rectified by the Amending Act which seeks to validate the statutory provision which has been struck down as unconstitutional and invalid.
It is his argument that without seeking to remove or rectify the defect or lacuna, no Validation can be made to defeat the judgment of the Court striking down any particular statutory provision.
The learned counsel contends that enhancing the rate of tax from 6 1/2% to 45% with retrospective effect must necessarily be held to be arbitrary.
It is his contention that mere enhancement of the rate without seeking to validate the provision by removing or rectifying the defector lacuna clearly results in retrospective imposition of tax and any such imposition of tax with retrospective effect must be held to be unreasonable and arbitrary.
In support of the submissions made, particular reliance has been placed on the two decisions of this Court in the case of Janapada Subha, Chindwara etc.
vs The Central Provinces Syndicate Ltd(1), and Municipal Corporation of the City of Ahemdabad vs New Shorock Spg.
& Wvg.
Co. Ltd. etc.(2) The material facts in the case of Janapada Sabha, Chindwara (supra) may briefly be indicated.
In 1935, the Independent Mining Local Board, Chindwara, constituted under C.P. Local Self Government Act, 1920, resolved to levy a cess on coal extracted within the area at 3 pies per ton.
The sanction of the Local Government, as required by S.51 (2) of Act, was obtained for the levy.
In 1943, the levy was enhanced to 4 pies, in 1946 to 7 pies and in 1947 to 9 pies.
The validity of the enhanced levy was challenged and this Court, in appeal, held that the increased levy would also require the previous sanction of the Local Government and such sanction not having been obtained, the levy at a rate higher than 3 pies was illegal.
The State Legislature thereafter enacted the Madhya Pradesh Koyala Upkar (Manyata 835 karan) Adhinayam, 1964.
Section 3(1) provides that 'notwithstanding a judgment of any Court, cesses imposed, assessed or collected by the Board in pursuance of the notifications and notices specified in the Schedule shall, for all purposes, he deemed to be, and to have always been validly imposed, assessed or collected as if the enactment under which they were issued stood amended at material times so as to empower the Board to issue the said notifications.
In the Schedule were specified the three notifications enhancing the rate of cess.
On the question whether the enhanced levy was validated by the 1964 Act, a five Judge Bench of this Court held that it did not give legal effect to the imposition of cess at the enhanced rate.
This Court observed at p. 751: "The nature of the amendment made in Act 4 of 1920 has not been indicated.
Nor is there anything which enacts that the notifications issued without the sanction of the State Government must be deemed to have been issued validly under S.51 (2) without the sanction of the Local Government.
On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this Court.
That, in our judgment is not open to the Legislature to do under our constitutional scheme.
It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.
" In the Municipal Corporation of the City of Ahmedabad etc.
vs New Shorock Spg.
& Wvg.
Co. Ltd. etc.
(supra) the appellant corporation assessed the immovable properties of the respondents to property tax for the year 1964 65 and 1965 66 on the basis of the 'flat rate ' method under the Bombay Provincial Municipal Act.
The assessments were challenged in the High Court but the petitions were dismissed.
While appeals were pending in this Court, the Municipal Corporation, initiated proceedings for the recovery of the taxes and attached the properties of the assessees.
The assessees challenged the attachment proceedings but their petitions were 836 again dismissed.
In appeal against these orders in this Court the assessees prayed for interim stay, but this Court did not grant stay because the Municipal Corporation had undertaken to return the amounts if the respondents succeeded.
This Court thereafter allowed the appeals by the assessees.
Meanwhile an Amending 8 Act called the Bombay Provincial Municipal Corporation (Gujarat Amendment) Act, 1969 had been passed introducing section 152 A into the 1949 Act, but that provision was not brought to the notice of this Court.
However, when the assessees demanded refund of the amounts illegally collected from the Municipal Corporation did not comply and hence the assessees moved the High Court again.
These petitions were allowed and the Municipal Corporation appealed to this Court.
While the appeals were pending the Bombay Provincial Municipal Corporation (Gujarat Amendment and Validity Provision) Ordinance, 1969, was passed and sub section
(3) was introduced in section 152A. Sub section (3) which was introduced by the ordinance was in the following terms: "Not withstanding anything contained in any judgment, decree or order of any Court, it shall be lawful, and shall be deemed always to have been lawful, for the Municipal Corporation of the City of Ahmedabad to withhold refund of the amount already collected of recovered in respect of any of the property taxes to which sub section (1) applies till assessment or reassessment of such property taxes is made and the amount of tax to be levied and collected is determined under sub section (1): Provided that the Corporation shall pay simple interest at the rate of six per cent per annum on the amount of excess liable to be refunded under subsection (2), from the date of decree or order of the Court referred to in subsection (1) to the date on which excess is refunded," This Court held that under.
section 152 A of the Act before the Corporation could detain any amount collected as property tax there must be an assessment according to law; but in the present case there were no assessment orders in accordance with the provisions of 1949 Act and the rules as amended by the Amending and, therefore, the appellant corporation was not entitled to retain the amount collected as the Section did not authorise the Corporation to retain the amounts illegally collected.
This Court has further held that sub section (3) of section 152 A which commands the Corporation to refuse to refund the amount illegally collected despite the orders of this Court and the High Court.
makes a direct inroad into the judicial powers of the State; and the Legislatures which under the Constitution have, within prescribed limits powers to make laws prospectively and retrospectively are competent in exercise of these powers to remove the basis of a decision passed by a competent Court thereby rendering the decision ineffective, but no legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decision given by Court and section 152 A (3) was repugnant to the Constitution.
This Court at p. 295 has referred to the following observations made in Shri Prithi Cotton Mills Ltd. and Anr.
vs The Broach Borough Municipality and Ors: "Before we examine section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general.
When a legislature sets out to validate a tax declared by a Court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively.
The most important condition of course, is that the legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal.
Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise.
A Court 's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.
Ordinarily, a Court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction.
Validation of a tax so declared illegal may be 838 done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal.
Sometime this is done by providing for jurisdiction where jurisdiction had not been properly invested before.
Sometimes this is done by re enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the reenacted law.
" This Court at p. 296 and 297 relied on the earlier decision of this Court in the case of Janapada Sabha, Chindwara vs The Central Provinces Syndicate Ltd. (supra).
This Court finally observed at page 297: "We are clearly of the opinion that sub section (3) of section 152A introduced by the ordinance is repugnant to our Constitution.
That apart, the said provision authorises the Corporation to retain the amounts illegally collected and treat them as loans.
That is an authority to collect forced loans.
Such conferment of power is impermissible under our Constitution." The learned counsel appearing on behalf of the State has submitted that this very contention that the State has sought to enhance the rate of tax without seeking to remove or rectify the lacuna which was there in the earlier Act and for which the earlier provision has been struck down by the High Court, was raised in the writ petition filed in the High Court by the appellant.
It is the submission of the learned counsel that this contention has been rejected by the High Court for reasons indicated in the judgment.
The learned counsel has referred to the following observation made by the High Court: "This Court has not held that the State is not at all entitled to collect any amount by way of tax on the sale of arrack.
The sale price of arrack during the years 1966 to 1969 was fixed at 55 paisa a litre.
The amount which the State was authorised to collect was six and a half per cent of 55 paise on the sale of a litre of arrack which comes to about three and a half paise; instead, the State collected 24 paise and the excess collection was 20.5 paise a litre.
The 839 decision of this Court is that the State without authority of law was collecting excess amounts by way of tax on the sale of arrack.
It is relevant to state that under the Act where the State is deemed to be a dealer entitled to collect tax under Section 19, there is no provision for making an assessment of tax by the assessing authorities as in the case of ordinary dealers Without making an assessment, the State Government is entitled to collect amounts by way of tax in the same manner as any other registered dealer authorised to do so under Section 1B. By enhancing the rate of tax from six and half to 45 per cent with retrospective effect by enacting Section 2 in the impugned Act, it has to be deemed that the rate of tax under the Act has always been 45 per cent of the taxable turnover ever since 1. 4.
If the rate of tax was 45 per cent on the sale price of arrack which was 55 paise a litre, then the amount the State was authorised to collect comes to about 25 paise.
Thus it will be seen that by the enactment of Section 2 of the impugned Act the very basis of the complaint made by the petitioners before this Court in the earlier writ petitions as also the basis of the decision of this Court in Cawasji 's case that the State is collecting amounts by way of tax in excess of what was authorised under the Act has been removed.
Thus the decision of this Court has been rendered ineffective." The learned counsel seeks to adopt the aforesaid observations of the High Court as his submissions and contends that in view of the aforesaid reasoning which are cogent and sound it cannot be said that the impugned amendment is unconstitutional.
He submits that there are no valid grounds for interfering with the judgment of the High Court.
In the earlier case between the parties to which reference has already been made, the High Court issued writs directing the State Government to fore bear from collecting from the appellant any amount representing the sales tax on the following, namely, excise duty, health cess and education cess imposed on Arrack or special liquor and to refund to the appellant what might have been collected from them by way of sales tax on items of excise, health cess and education cess on Arrack or special liquor.
The High Court had 840 passed the aforesaid order issuing appropriate writ in view of the High Court 's finding that sales tax is not payable on excise duty, health cess and education cess.
In view of the aforesaid judgment and order passed by the High Court amounts collected by the States by way of Sales Tax on items of excise, health cess and education cess on Arrack or special liquor from the appellant became refundable to the appellant.
The impugned amendment has been passed, as the Statement of objects which we have earlier set out clearly indicates to over ride the judgment of the High Court and to enable the State to hold on to the amount collected as sales tax on excise duty, health cess and education cess, if any, on Arrack or special liquor.
It has to be noted that the said judgment of the High Court in the earlier case had become final and conclusive inasmuch as the special leave petition filed against the judgment by the State was withdrawn.
The State instead of seeking to test the correctness and effect of the judgment and order of the High Court thought it fit to have the judgment and order nullified by introducing the impugned amendment.
The amendment does not proceed to cure the defect or the lacuna by bringing in an amendment providing for exigibility of sales tax on excise duty, health cess and education cess.
The impugned Amending Act may not, therefore, be considered to be a Validating Act.
A Validating Act seeks to validate the earlier Acts declared illegal and unconstitutional by Courts by removing the defect or lacuna which led to invalidation of the law.
With the removal of the defect or lacuna resulting in the validation of any Act held invalid by a competent Court, the Act may become valid, if the Validating Act is lawfully enacted.
But the question may still arise as to what will be the fate of acts done before the Validating Act curing the defect has been passed.
To meet such a situation and to provide that no liability may be imposed on the State in respect of such acts done before the passing of the Validating Act making such act valid, a Validating Act is usually passed with retrospective effect.
The retrospective operation relieves the State of the consequences of acts done prior to the passing of the Validating Act.
The retrospective operation of a Validating Act properly passed curing the defects and lacuna which might have led to the invalidity of any act done may be upheld, if considered reasonable and legitimate.
841 In the instant case, the State instead of remedying the defect or removing the lacuna has by the impugned amendment sought to raise the rate of tax from 6.1/2% to 45% with retrospective effect from the Ist April 1966 to avoid the liability of refunding the excess amount collected and has further purported to nullify the judgment and order passed by the High Court directing the refund of the excess amount illegally collected by providing that the levy at the Higher rate of 45% will have retrospective effect from Ist of April, 1966.
The judgment of the High Court declaring the levy of sales tax on excise duty, education cess and health cess to be bad has become conclusive and is binding on the parties.
It may or may not have been competent for the State Legislature to validly remove the lacuna and remedy the defect in the earlier levy by seeking to impose sales tax through any amendment on excise duty, education cess and health cess; but in any event, the State Government has not purported to do so through the Amending Act.
As a result of the judgment of the High Court declaring such levy illegal, the State became obliged to refund the excess amount wrongfully and illegally collected by virtue of the specific direction to that effect in the earlier judgment.
It appears that the only object of enacting the amended provision is to nullify the effect of the judgment which became conclusive and binding on the parties to enable the State Government to retain the amount wrongfully and illegally collected as sales tax and this object has been sought to be achieved by the impugned amendment which does not even purport or seek to remedy or remove the defect and lacuna but merely raises the rate of duty from 6.1/2% to 45% and further proceeds to nullify the judgment and order of the High Court.
In our opinion, the enhancement of the rate of duty from 6.1/2% to 45% with retrospective effect is in the facts and circumstances of the case clearly arbitrary and unreasonable.
The defect or lacuna is not even sought to be remedied and the only justification for the steep rise in the rate of duty by the amended provision is to nullify the effect of the binding judgment.
The vice of illegal collection in the absence of the removal of the illegality which led to the invalidation of the earlier assessments on the basis of illegal levy, continues to taint the earlier levy.
In our opinion, this is not a proper ground for imposing the levy at the higher rate with retrospective effect.
It may be open to the Legislature to impose the levy at the higher rate with prospective operation but levy of taxation at higher rate which really amounts to imposition of tax with retrospective operation has 842 to be justified on proper and cogent grounds.
This aspect of the matter does not appear to have been properly considered by the High Court and the High Court in our view was not right in holding that by the enactment of section 2 of the impugned Act the very basis of the complaint made by the petitioner before this Court in the earlier writ petition as also the basis of the decision of this Court in Cawasji 's case that the State is collecting amounts by way of tax in excess of what was authorised under the Act has been removed".
We, accordingly, set aside the judgment and order of the High Court to the extent it upholds the validity of the impugned amendment with retrospective effect from Ist of April, 1966 and to the extent it seeks to nullify the earlier judgment of the High Court.
We declare that section 2 of the impugned amendment to the extent that it imposes the higher levy of 45% with retrospective effect from the Ist day of April, 1966 and section 3 of the impugned Act seeking to nullify the judgment and order of the High Court are invalid and unconstitutional.
We accordingly allow the appeals to this extent.
The appellants shall be entitled to costs of these appeals with one set of hearing fee.
N.V.K. Appeals allowed.

summary/full:
The appellants were Excise Contractors who had secured the excise privilege of retail sale of Toddy, Arrack or Special Liquor.
The State Government had the monopoly of the first sale of Arrack which is country liquor other than Toddy.
The manufacture of Arrack by distillation is done in the State under State control and the entire quantity manufactured in the State is sold to the State Government which in its turn supplies it to the bonded depots in Taluks.
Under the Mysore Excise Act, Arrack is liable to excise duty at rates prescribed by the Government.
The State does not collect excise duty from the distillers.
From the distillery arrack is transferred to Bonded Depots and excise duty together with cesses thereon is collected from the contractors who are given the privilege or right to effect retail sales of Arrack.
The exclusive privilege of retail vending of Arrack for each excise year which commences on the first day of July and ends on 30th June of the following year is sold by the State by auction.
Under the terms and conditions governing the licenses, granted to the contractor whose bid is accepted and to whom the licenses for vending arrack is granted, the licensees were required to deposit in the State Treasury under separate heads of account the sales tax payable to the State Government and the excise duty with cesses.
826 However, with effect from 1.4.1966 the State Government started collecting sales tax computed on the sale price of Arrack together with excise duty and cesses payable thereon.
So computed sales tax came to about 24 Paise a litre which was collected alongwith the price of Arrack sold to the licensees.
The validity of the collection of the sales tax on the aforesaid basis was challenged by the appellants.
A Division Bench of the High Court allowed the writ petition, D. Cawasji and Co. Mysore vs State of Mysore 1969 (1) Mys.
L.J. 461, holding that the State Government could not under S.19 of the Sales Tax Act, collect sales tax on excise duty which is not a part of the selling price of Arrack.
The appeal preferred by the State Government to this Court was withdrawn.
During the pendency of the appeal the privileges of vending liquor in the excise year 1968 69 were sold without any variation in the price of Arrack fixed by the Government during the previous year at 55 paise a litre.
During the year 1968 69 the State Government collected sales tax computing the same @ 6.1/2% of the actual sale price without including therein excise duty and cess.
As the liability of the States to refund the amount collected as sales tax in excess amounted to lacs of Rupees, and with the object of avoiding the liability of refund by the State Government of the excess amount so collected, the State passed Ordinance No. 3 of 1969 on 17th July, 1969 which was replaced by the Mysore Sales Tax (Amendment) Act, 1969 on 19th July, 1969.
The validity of this Amending Act was challenged by the appellants on the ground that the Amending Act was unreasonable and arbitrary but the High Court dismissed the writ petition.
In the appeal to this Court, it was contended on behalf of the appellant that the Amending Act does not seek to rectify or remove the defect or lacuna on the basis of which the collection of the excess sales tax had been set aside by the High Court, and that the increase in the rate of sales tax from 61/2% to 45% with retrospective effect is clearly arbitrary and unreasonable for if, any particular provision of the statute is for some lacuna or defect in the statute declared unconstitutional or invalid, it is open to the Legislature to pass a Validating Act with retrospective effect so that the State may not be saddled with liability of refund or other consequences which may arise as a result of the particular provision being declared invalid.
On behalf of the respondent State it was contended that by the enactment of S.2 of the impugned Act the very basis of the complaint made by the appellants in the earlier writ petitions that the State was collecting amounts by way of tax in excess of what was authorised under the Act had been removed.
Allowing the Appeals, 827 ^ HELD: 1.
The only object of enacting the amended provision it appears is to nullify the effect of the judgment which became conclusive and binding on the parties to enable the State Government to retain the amount wrongfully and illegally collected as sales tax and this object has been sought to be achieved by the impugned amendment which does not even purport or seek to remedy or remove the defect and lacuna but merely raises the rate of duty from 6.1/2% to 45% and further proceeds to nullify the judgment and order of the High Court.
[841E F] 2.
The enhancement of the rate of duty from 6.1/2% to 45% with retrospective effect is in the facts and circumstances of the case clearly arbitrary and unreasonable.
The defect or lacuna is not even sought to be remedied and the only justification for the steep rise in the rate of duty by the amended provision is to nullify the effect of the binding judgment.
[841 F] 3.
The vice of illegal collection in the absence of the removal of the illegality which led to the invalidation of the earlier assessments on the basis of illegal levy.
continues to taint the earlier levy.
This is not a proper ground for imposing the levy at the higher rate with retrospective effect.
[841G] 4.
It may be open to the Legislature to impose the levy at the higher rate with prospective operation but levy of taxation at higher rate which really amounts to imposition of tax with retrospective effect has to be justified on proper and cogent grounds.
[841H] 5.
The amendment does not proceed to cure the defect or the lacuna by bringing in an amendment providing for exigibility of sales tax on excise duty, health cess and education cess.
The impugned Amending Act cannot therefore be considered to be a Validating Act.
A Validating Act seeks to validate the earlier Acts declared illegal and unconstitutional by Courts by removing the defect or lacuna which led to invalidation of the law.
With the removal of the defect or lacuna resulting in the validation of any Act held invalid by a competent Court, the Act may become valid if the Validating Act is lawfully enacted.
To provide that no liability may be imposed on the State in respect of acts done before the passing of the Validating Act making such act valid, a Validating Act is usually passed with retrospective effect.
The retrospective operation relieves the State of the consequences of acts done prior to the passing of the Validating Act.
The retrospective operation of a Validating Act properly passed curing the defects and lacuna which might have led to the invalidity of any act done may be upheld, if considered reasonable and legitimate.
[840E A] In the instant case, the State instead of remedying the defect or removing the lacuna has by the impugned amendment sought to raise the rate of tax from 6.1/2% to 45% with retrospective effect from the 1st April 1966 to avoid the liability of refunding the excess amount collected and has further purported to nullify the judgment and order passed by the High Court directing the refund of the excess amount illegally collected by providing that the levy at the higher 828 rate of 45% will have retrospective effect from 1st of April 1966.
The judgment of the High Court declaring the levy of sales tax on excise duty, education cess and health cess to be bad became conclusive and was binding on the parties.
It may or may not have been competent for the State Legislature to validly remove the lacuna and remedy the defect in the earlier levy by seeking to impose sales tax through any amendment on excise duty, education cess and health cess but in any event, the State Government has not purported to do so through the Amending Act.
[841A D] D. Cawasji & Co. Mysore vs State of Mysore, , D. Cawasji & Co. and Others vs The State of Mysore 1968 (16) L.R. 641, Janapada Sabha, Chindwara etc.
vs The Central Provinces Syndicate Ltd.; , , Municipal Corporation of the City of Ahmedabad vs New Shorock Spq.
and Wvg. & Co. Ltd. etc ; and Shri Prithi Cotton Mills Ltd. and Anr.
vs The Broach Borough Municipality and Ors., , referred to.