judgement:
Civil Appeal No. 576 of 1975.
From the judgment and order dated the 6th March, 1975 of the Orissa High Court in E.P. No 3 of 1974.
Somnath Chatterjee, and Ratin Das, for the appellant.
Vinoo Bhagat, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
' Six candidates contested the mid term election to the Orissa Legislative Assembly from the Nilgiri constituency.
The polling was held on February 26, 1974 and on March 1 the result of 5; the election was declared.
The appellant who contested the election on the ticket of the Communist Party of India (Marxists) was declared as the successful candidate.
According to the results declared on March ], the appellant secured 14346 votes while respondent 1 who contested the election on the ticket of the Bharti Lok Dal secured 14297 votes.
The other contestants, respondents 2 to 5, secured votes ranging between 12, 312 and 5961.
Respondent 6.is the Returning officer.
On April 13, 1974 respondent 1 filed an election petition under section 81 of Representation of the People Act, 1951 (hereinafter called "the Act") challenging the election of the appellant and praying that, instead, he himself should be declared as the successful candidate.
The appellant 's election was challenged by respondent 1 on the ground mainly, that through an error the Returning officer did not enter the results of the second round of counting on Table No. 13 in Form No. 20, as prescribed by Rule 56(7) of the Conduct of Election Rules 1961.
It was alleged that instead of incorporating the results of the second round of counting on Table No. 13 in Form No. 2, the 214 Returing officer wrongly incorporated the results of the second round of counting on Table No. 14 in the column meant for the corresponding count of Table No. 13.
In other words, the allegation was that the results of the second round of counting on Table No. 14 were erroneously entered twice in Form No. 20, once as against the second round of Table No. 14 and once as against the second round of Table No. 13 The appellant denied this allegation contending that he had secured the largest number of votes and that there was a clear difference of 49 votes between him and respondent No. 1.
The appellant also raised several other contentions touching the maintainability of the election petition on the ground of non compliance with statutory requirements.
on these pleadings, the learned Judge of the High Court of Orissa Cuttack, who tried the election petition framed 8 issues but they were re cast after the evidence was recorded.
Issues Nos. 1 to S pertained to the maintainability of the election petition and on these issues the learned Judge found in favour of respondent 1.
Those findings are not challenged before us and, therefore we must proceed on the basic that the election petition as presented did not suffer from any illegality.
Issues Nos.
6 to 8 are the ones with which alone we are concerned in this appeal and those issues arise out of the contentions in regard to the entries made by the Returning officer in Form No. 20.
The ninth issue is consequential Respondent l examined himself and one Khagendranath Naik who was his Counting Supervisor on Table No. 13.
On behalf of the appellant, an election agent and a counting agent of his were examined as witnesses.
Neither party examined the Returning officer nor indeed did the Returning Officer who was respondent 6 to the petition offer to give evidence on the question as to whether the results of the second round of counting of Table No. 14 were erroneously entered as against the corresponding column of Table No, 13.
During the hearing of the petition, the learned Judge inquired of the parties whether they were agreeable to a recount being taken of all the ballot papers.
Counsel appearing for the appellant and respondents 1 and 2 agreed to the course suggested by the learned Judge.
Respondents 3 to 5 who had contested the election but were defeated did not appear at the trial nor indeed did the Returning officer.
On February 3. 1975 the learned Judge passed an order directing that "the entire ballot papers should be recounted".
The ballot papers were accordingly sent for.
Twenty one sealed trunks were received by the court and the recounting was done by the Deputy Registrar of the High Court in the presence of the counsel for the contending parties.
After the recount was taken, the, Deputy Registrar submitted a detailed report which was made a, part of the record under an order passed by the learned Judge on February 21, 1975, 215 In view of ' the fact that the findings recorded by the learned Judge in favour of respondent 1 on issues 1 to 5 are not challenged before us.
, the only question for decision is whether respondent 1 has discharged the onus of proving that the result of the second round of counting on the 13th Table was not at all recorded in Form No, 20 and whether the result of the second round of counting on Table No. 14 was erroneously entered as against the second round of Table No. 13.
Section 64 of the Act provides that at every election where a poll is taken, votes shall be counted by or under the supervision and direction of the returning officer and each contesting candidate his election agent and his counting agents, shall have right to be present at the time of counting.
Section 169 of the Act which empowers the Central Government after consultation with the Election Commission to make rules for carrying out the purposes of the Act provides by sub section (2)(g) that such rules may provide for the scrutiny and counting of votes.
Rule 56(7) of the Conduct of Election Rules, 1961 provides that after the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed, the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.
Form 20 called the "Final Result Sheet" requires the returning officer to enter therein the total number of valid votes recorded for the various candidates as also the total number of rejected ballot papers, at each round separately.
In order to avoid errors in counting of votes, the Election Commission has compiled a hand book for the use of returning officers containing instructions for their guidance at various stages of the elections.
Before the results of the election are entered in Form No. 2.
it is necessary that a record be maintained of the result of counting of each round.
Paragraph 14 B in Chapter VIII of the hand hook directs that the officer in charge of distribution of the ballot papers for counting should take out a sufficient number of bundles from the drum so as to make up 1000 ballot papers and distribute them to each table for counting at each round.
After the counting of every such thousand ballot papers is over, the bundles are given back to the supervisor of the counting table with the "Check Memo" duly filled in and signed by the assistant.
The Check Memo shows the votes polled by the various candidates in the particular round as also the total number of rejected votes.
When the distribution and counting of bundles is thus completed on all the counting tables, one round of counting is said to be over.
the next round of counting will then begin.
The same procedure is required to be followed for every round of counting so that the result of each round of counting on each table is reflected in the Check Memo relating to each round.
As many Check Memos as many rounds of counting.
The form of the Check Memo is at annexure XII A and a sample form duly filled in is at annexure XII B of the Hand book.
These forms are not prescribed by the Act or the rules made thereunder but the directions in regard thereto have to be carried out on the instructions of the Election Commission in which the overall ' control and supervision of elections is vested.
The directions and 216 forms contained in the hand book for the use of returning officers are intended to facilitate the holding of fair and error free elections and no objection can be taken to either, The original Check Memo of the 13th Table in which results of the second round were entered was not produced during the trial but a certified copy thereof was admitted in evidence as exhibit 1, subject to the objection raised by the appellant as to its admissibility.
There is no substance in that objection.
Section 74 of the Evidence Act provides that documents forming the acts or records of the acts of public officers are public documents.
Section 76 provides that every public officer having the custody of a public document which any person has a right to inspect shall give that person a copy of it together with the certificate that it is a true copy of the document.
By section 77, such certified copies may be produced in proof of the contents of the documents of which they purport to be copies.
The Check Memo which is required to be maintained by the officer in charge of the counting table is a document forming record of the acts of a public officer and therefore, a certified copy thereof given by the Collector in whose custody the document is kept, can be admitted in evidence in proof of the contents of the original document.
The certified copy (exhibit 1) of the Check Memo concerning the second round of counting on Table No. 13 shows that 40 bundles each containing 25 ballot papers (i.e. 1000 ballot papers), were distributed for counting in the second round.
Part I of exhibit 1 contains these details.
Part II of exhibit 1 shows the result of counting at the second round.
According to the entries contained therein, the appellant secured 21 valid votes, respondent 1 secured 86, while respondents 2 to 5 secured 304, 7, 15 and 524 votes respectively.
Forty two ballot papers were rejected, thus making up a total of 999 ballot papers.
Evidently, there was an error regarding one ballot paper either at the stage of distribution or at the stage of counting.
What is relevant is not that there was an error in the counting of one ballot paper but that the result of counting which is entered in the Check Memo ought to have been incorporated in Form No. 20 in the appropriate column Surprisingly in Form No. 20, the votes secured by the various candidates in the second round of counting on Table No. 13 were shown as: the appellant 144 votes instead of 21; respondent 1 109 votes instead of 86; respondent No. 2_360 votes instead of 304; respondent No. 3_ 19 votes instead of 7; respondent No. 4 74 votes instead of 15, and respondent No. 5 225 votes instead of 524.
In short, whereas the appellant had truly secured 21 votes only in the second round of counting on Table No. ]37 the Final Result Sheet, Form No. 20 showed that he had secured 144 votes; and whereas respondent No. 1 had secured 86 votes, he was shown to have secured 109 votes.
The error was favourable to both the parties but whereas the error in favour of the appellant was to the extent of 123 votes, that in favour of respondent 1 was to the extent of 23 votes only.
As the appellant was declared to have won the election by a margin of 49 votes only over respondent 1, it is plain that respondent 1 and not the appellant had polled the largest number of votes.
217 A mere look at the entries in Form No. 20 relating to the second round of counting on Table Nos. 13 and 14 would disclose the error committed in making the entries therein. 'the entries made in respect of Table No. 14 were accurate, but precisely those very figures were through some error carried to the second round of Table No. 13.
It can seldom happen that five contesting, candidates would secure precisely the same number of votes in the same round of counting on two different tables, when a thousand ballot papers are distributed to the two tables by picking them up at random from a common drum or receptacle.
It is, however, unnecessary to speculate about any such possibility because it is incontrovertible that entries in the Check Memo relating to the second round of counting on Table No. 13 were not transferred to the appropriate column of Form No. 20.
We therefore up hold the finding of the learned Judge that the result of the second round of the 14th Table came to be recorded twice and that the true result of the second round of counting on Table No. 13 was entirely omitted while making entries in Form No. 20.
It must follow that respondent 1 has secured the maximum number of valid votes and is therefore entitled to be declared as the successful candidate.
This really should be an end of the matter because the only ground on which respondent l had challenged the appellant 's election was that the relevant entries in Form No. 20 did not reflect the true picture.
But the order passed by the learned Judge that a recount shall be taken of all the ballot papers has furnished to the appellant an opportunity to raise a doubt, here and a doubt there regarding the manner in which the, votes were counted and the ballot papers preserved.
In our opinion the learned Judge was in error in directing, merely because his suggestion was accepted by the panties appearing before him.
that the court should take a recount of all the ballot papers.
Respondent 1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was, that the entries in Form No. 20 reflected a true picture and contained no error.
The consent to the recount was given only by the appellant and respondents 1 and '.
The other respondents who had contested the election did not appear at the trial of the election petition but they certainly had no notice that, a recount would be suggested or accepted when there was no plea. about ,it in the pleadings of the parties.
The learned Judge widened unduly the scope of the election petition and landed himself into an unforeseen difficulty or having to decide point on which there was neither a pleading nor an issue.
After the Deputy Registrar submitted his report, the learned Judge felt "serious doubts about the correctness of the recount" but all that he did in order to allay those doubts was to take a re recount of a packet of votes where he thought the error of the recount could with assurance be located.
And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to see the light of the day as a result of the recount and the recount.
Even election petitions must end at some stage and they cannot, for the reason that elections are a democratic venture, be permited to procreate points during the course of their pendency.
As we were listening to the 218 appellant 's argument, we thought we were hearing all independent election petition filed by the appellant in order to challenge the result of, the recount.
Mr. Somnath Chatterjee, appearing for the appellant, argued that the facts which have emerged out of the recount throw considerable doubt on the manner in which the election was held and therefore instead of declaring respondent No. I as the successful candidate we should order that a fresh election be held.
Elections, says the learned counsel, are not a matter of technicalities and the court must satisfy its conscience that the election before it was free and Fair.
Justice may.
be a matter of the Judge 's conscience but even a strong and sensitive conscience must not brook an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder.
The new errors on which the appellant now relies have an air of plausibility and no more.
The new argument founded on those errors must therefore fail.
As, respondent I truly secured the maximum number of votes and as the appellant was, through an error, shown to have secured the maximum.
number of votes, we must uphold the judgment of the Orissa High Court setting aside the appellant 's election and declaring respondent I as the successful candidate.
The appeal is accordingly dismissed with costs in favour of respondent P.H.P. Appeal dismissed.

summary/full:
Six candidates contested the mid term election to the Orissa Legislative Assembly from Nilgiri Constituency.
The appellant was declared elected by a margin of 49 votes over respondent No. 1.
Respondent No. 1 filed an Election Petition challenging the election of the appellant and praying that instead of the appellant he should be declared as the successful candidate. 'the appellant 's election was challenged by respondent No. 1 mainly on the ground that through an error the returning officer did not enter the results of the second round of counting, on table No. 13 in Form No. 20 as prescribed by rule 55(7) of the Conduct of Election Rules 1961.
The allegation was that the results of the second round of counting on table No. 14 were erroneously entered twice in form No. 20, once against as the second round of table No. 14 and once against the second round of table No. 13.
During the hearing of the petition, the learned Judge enquired whether the parties were agreeable to a recount being taken of all ballot papers.
Counsel appearing for appellant and respondents Nos. 1 and 2 agreed to the course suggested by the learned Judge.
Respondents Nos. 3 to S did not appear at the trial.
After the recount was taken the Deputy Registrar submitted a detailed report which was made a part of the record of the Court.
Section 64 of the Act provides that in every election where a poll is taken votes shall be counted by or under the supervision of the returning officer and each contesting candidate his election agent and counting agent shall have a right to be present at the time of counting Section 169 of ' the Act empowers the Central Govt.
after consultation with the Election Commission to make rules for carrying out the purposes of the Act. ' Rule 56(7) of the Conduct of Election Rules 1961 provides that after the counting of all ballot papers contained in all the ballot boxes used in a constituency has been complete the returning officer shall make the entries in a result sheet in form No. 20 and announce the particulars.
The Election Commission has compiled a hand book for the use of the returning officers in order to avoid errors in counting of votes.
Para 14 B in chapter VIII of the hand book directs that the officer in charge of distribution of the ballot paper for counting should take out sufficient number of bundles from the drums so as to make up 1000 ballot papers and distribute them to each table for.
counting at each round.
After the counting of every suck 1000 ballot papers is over the bundles are given back to the supervisor of the counting table with the Check Memo duly filled in and signed by the Assistant. 'the form of the check Memo is at Annexure XII A and a sample form is at Annexure XII B of the handbook.
The original check memo of the 13th table in which the results of the second round was entered was not produced during the trial but a certified copy thereof was admitted in evidence. 'the appellant objected to its admissibility.
Dismissing the appeal, ^ HELD: The certified copy of the check memo is admissible in evidence Under section 74 of the Evidence Act, documents forming acts or records of the acts of public officers are public documents.
By section 77, such certified copies may be produced in proof of the contents of the documents of which they purported to be copies.
The check memo is a document forming records of the acts of a public officer and, therefore, a certified copy thereof given by the Collector in whose custody the document is kept can be admitted in evidence in proof of the contents of the original document [216A D] 213 In form No. 20 voles secured by the various candidates in the second round of counting on table 13 was wrongly mentioned.
Whereas the appellant had secured 21 votes only in the second round of counting on table No. 13, the final result sheet form No. 20 showed that he had secured 144 votes and whereas respondent No. 1 had secured 86 votes he was shown to have secured 109 votes.
The error was favourable to both the parties.
But whereas the error in favour of the appellant was of) the extent of 123 votes, that in favour of respondent No 1 was to the extent of 23 votes only.
As the appellant was declared to have won; the election by a margin of 49 votes only, it is respondent No. 1 and not the appellant who polled the largest number of votes.
It must follow that respondent No. 1 has secured the maximum number of valid votes and is, therefore, entitled to be declared as the successful candidate.
[216G H; 217C D] The High Court was in error in directing that the Court will recount all the ballot papers.
In the election petition filed by respondent No. 1 there was no request for recount.
The consent to the recount was given only by respondents No. 1 and 2.
The other respondents had no notice that recount would be suggested or accepted, when there was no plea about it in the pleadings of the parties.
The High Court widened unduly the scope of the election petition and landed itself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue.
True, that elections are not a matter of technicalities but even a strong and sensitive conscience must not book an endless litigation in which parties will fish for new challenges based on accidental discoveries of no more than plausible points to ponder.
The new errors on which the appellant relied had an air of plausibility and no more.
The new argument founded on those errors had therefore to fail.
[217E 218C]


judgement:
Civil Appeal Nos.
1988 1989 of 1970.
From the Judgment and order dated the 29th day of October, 1968 of the Kerala High Court in W.P. No. 156 of 1967.
V. A. Seiyed Muhamad and K. M. K. Nair, for the appellant (In C.A.No. 1988/70.
K. M. K. Nair, for the appellant (In C.A. No. 1989/70) G. B. Pai, A. G. Meneses, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of civil appeals No. 1989 and 1989 of 1970, Filed on certificate against the judgment of the Kerala High Court, whereby that court held that it was beyond the competence of the State Legislature to enact law contained in sub section (3) of section 22 of the Kerala General Sales Tax Act, 1963 (Act 15 of 1963) (hereinafter referred to as the Act) in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the.
We may now set out the facts giving rise to one of the appeals.
Both the learned counsel are agreed that the decision in that would also govern the other appeal.
Under section 5 of the Act, tax is payable by a dealer on his tax able turnover. "Taxable turnover` ' is defined in section 2(xxv) of the Act as the turnover on which a dealer is liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed by the rules under the Act.
It does not, however, include the turnover of purchase or sale in the course of inter State trade or commerce or in the course of export or import of goods.
The Kerala General Sales Tax Rules have been framed be the State Government in exercise of the powers conferred by section 57 of the Act.
According to clause (i) of rule 9 of the sail rules.
in determining the taxable turnover the following amount shall be deducted from the total turnover of the dealer: "the excise duty, if any paid by the dealer to the Government of Kerala or the Central Government in respect of the goods sold by him".
It may be stated that clause (i) was omitted subsequently but we are concerned with the period when that clause was an integral part of the rule.
The respondent is an incorporated company engaged in the manufacture and sale of soaps, toilets and other goods.
The respondent 's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs. 30,591.71 as sales tax in excess of the tax which the respondent was liable to pay under the Act.
The respondent, it would appear, paid Rs. 6,62,958 as excise duty and deducted the same from its total turnover for the purpose of determining the taxable turnover.
When, however, the respondent company sold the 154 goods it collected sales tax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods.
This resulted in the respondent company realising Rs. 30,591.71 in excess of the sales tax payable in respect of the goods sold by it: The sales tax officer held that the respondent was liable to pay the aforesaid amount of Rs. 30,591.71 to the Government under section 22(3) of the Act.
The respondent then filed writ petition in the Kerala High Court to challenge its liability to pay the aforesaid amount on the ground that the provisions of section 22 in so far as they imposed a liability on a dealer to pay over to the Government any amount collected by him as sales tax, even though that amount was not payable as tax, was unconstitutional.
The learned single Judge dismissed the petition filed by the respondent.
On appeal, however, the Division Bench held, as already mentioned earlier, that the impugned provision was beyond the legislative competence of the State Legislature.
Sub section (3) of section 22 of the Act reads as under: "(3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable to under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid tax, pay over to the Government, in addition to the tax payable the amount so collected within such time and in such manner as may be prescribed.
" The learned Judges of the High Court in holding the above provision.
in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act to he beyond the legislative competence of the State Legislature, referred to entry 54 of the State List in the Seventh Schedule to the Constitution upon which reliance had been placed on behalf of the State.
It was held that the State Legislature was incompetent to enact the impugned provisions contained in sub section (3) of section 22 of the Act under the above entry.
In appeal before us Dr. Seiyed Muhammad on behalf of the appellants has assailed the judgment of the Division Bench of the High Court.
As against that, Mr. Pai on behalf of the respondent has canvassed for the correctness of the said judgment.
After hearing the learned counsel, we are of the opinion that there is no merit in these two appeals.
A State Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of "taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I".
Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter State trade or commerce, and we are not concerned with this entry.
155 Entry 54 enpowers State Legislatures to make law, except i certain cases with which we are not concerned, in respect of taxes on the sale or purchase of goods.
As long as the law relates to taxes on the sale or purchase of goods, it would be within the competence of the State Legislature to enact such a law.
It would not, however, b permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax.
Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax.
It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax.
Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigibie under the State law as sales tax or purchase tax was wrongly realised as such by a dealer.
The answer to such a question has to be in the negative.
The matter indeed is not res integra and is concluded by two decisions of this Court.
A Constitution Bench of this Court examined in the case of R. Abdul Quader & Co. vs Sales Tax officer, Hyderabad(1) the validity of section l l (2) of the Hyderabad Sales Tax Act, 1950 which reads as under: "(2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected lay him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue.
" The appellant in that case collected sales tax from the purchasers of betel leaves in connection with the sales made by it.
The appellant however, did not pay the amount collected to the government.
The Government directed the appellant to pay the amount to the Government.
The appellant thereupon filed a writ petition in the High Court questioning the validity of section 11(2).
The main contention of the appellant before the High Court was that section 11(2) which authorised the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect (1) ; 156 under the authority of a law enacted under entry 54 of List II of the Seventh Schedule to the Constitution any such amount.
The High Court upheld the validity of section 11(2).
On appeal to this Court it was observed by the Constitution Bench as under: "The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government.
Now it is clear that the sums so collected by way of tax arc not in fact tax exigible under the Act.
So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision.
the amount, though collected by way of tax, was not exigible as tax under the law." An attempt was made on behalf of the State in that case to sustain the validity of section 11(2) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax.
This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected may be wrongly by way of tax is not exigible under the law.
as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax.
The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. vs State of Bihar & Anr.(1).
In that case in determining the appellant 's turnover for assessment to sales tax for the year 1956 57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellant 's sales of cement.
The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover.
After the introduction of section 20 A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20 A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited.
The appellant 's contention that section 20 A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution.
On appeal filed by the assessee this Court held that sub sections (3), (4) and (5) of section 20 A were ultra vires the State legislature.
As a corollary thereto, sub sections (6) and (7) of that section were also held to be invalid.
Subsection (3) of section 20 A of the Bihar Sales Tax Act read as under: "(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of (1) 157 any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.
(b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may.
after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected.
" In holding sub section (3) and other impugned provisions of section 20 A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadar 's case (supra).
Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act.
This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra).
Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act.
Dr. Muhammad 's argument involves inventing a category of a "deemed tax" which is not there in the Act.
The provisions of the Act contain a definition of "tax".
This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act.
"Tax", according to section 2(xxiv) of the Act, means the tax payable under the Act.
The amount which was realised by the respondent in excess of what was due as tax cannot 158 be held to be "tax", because such excess amount was not tax payable under the Act.
If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act.
The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, even though the same could not be recovered as tax under the Act.
We would, therefore, dismiss the two appeals with costs.
One hearing fee.
V.P.S. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
According to r. 9(1) of the Kerala General Sales tax Rules framed under.
the Kerala General Sales tax Act, 1963, in determining the taxable turnover of a dealer the excise duty, if any, paid by the dealer to the Government of Kerala or to the Central Government in respect of the goods sold by him shall be deducted.
Section ,22(3) of the Act provides that if any dealer or person collects tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act such dealer or person shall pay to the Government.
in addition to the tax payable, the amount so collected unless it was refunded to the person from whom it was collected.
The respondent deducted the sum paid by it as excise duty from its total turnover for the purpose of determining the taxable turnover.
The respondent, however, when it sold the goods.
had collected, sales tax from the purchasers on the invoice prices without deducting therefrom the excise duty paid in respect of the said goods.
This resulted in the respondent realising a sum in excess of the sales tax payable in respect of the goods sold by it.
The Sales tax officer held that the respondent was liable to pay that amount to the Government under section 22(3).
The writ petition filed by the respondent was allowed by the High Court on the ground that section 22(3) was not covered by Entry 54 of the State List in the VII Schedule to the Constitution, and hence, beyond the competence of the Slate Legislature.
Dismissing the appeal to this Court.
^ HELD: (1) Entry 54 empowers the State Legislatures to make laws, except in certain cases, in respect of taxes on the sale or purchase of goods.
As long as the law relates to taxes on the sale or purchase of goods, it would be within their legislative competence.
But, it would not be permissible for.
the State legislature to enact a law under Entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax.
Such a l. would not be a law relating to tax of the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax.
[1 55A C] (2) The ambit of ancillary or incidental power would not go to the extent of permitting the Legislature to provide that.
though the amount collected, may be wrongly, be way of tax,, was not tax, it shall still be paid over to the Government as if it were a tax.
[156D E] (3) The fact that the amount realised is in excess of the tax leviable and not as amount which was not at all payable as tax, would not make any difference.
Any amount realised by a dealer in excess of the tax leviable, stands, for the purpose of determining the legislative competence under Entry 54, on the same footing as an amount not due as tax under the Act.
Tax, according to section 2(xxiv) of the Act, means tax payable under the Act.
This necessarily means that everything outside it, collected by the dealer.
would be an exaction not authorised by the Act.
The amount which was realised by the respondent in excess of what was due as tax cannot be held to be tax, because, such excess amount was not tax payable under the Act.
If the State Legislature cannot make a law under Entry 54 directing payment to the State of any amount collected as tax on transactions not liable to lax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised by a dealer in excess of the tax payable under the Act.
[157G 158C] 153 R. Abdul Quader & co. vs Sales Tax Officer , Hyderabad and Ashoka Marketing Ltd. vs State of Bihar & Anr. followed.


judgement:
on No. 40 of 1955.
Under Article 32 of the Constitution for a Writ of Habeas Corpus.
208 Purshottam Trikumdas, (K. B. Asthana, Syed Murtaza Fazl Ali and Rajinder Narain, with him) for the petitioner.
M.C. Setalvad, Attorney General for India and C.K Daphtary Solicitor General for India (Porus A. Mehta and R.H. Dhebar, with them) for the respondents.
April 7.
The Judgment of Mukherjea C. J., Das, Vivian Bose and Imam JJ.
was delivered by Das J. Sinha J. delivered a separate Judgment.
DAS J. This is a petition for a writ in the nature of a writ of habeas corpus calling upon the respondents to show cause why the petitioner, who is now confined in the Central Jail at Rewa, should not be set at liberty.
The petitioner 's grievance is that he has been deprived of his liberty otherwise than in accordance with procedure established by law.
A rule nisi having been issued, the respondents have filed an affidavit by way of return to the writ.
The question for our decision is whether the return is good and sufficient in law.
The facts leading up to the present petition are few and simple.
In the years 1948 and 1949 the petitioner was the Minister of Industries in the Government of Vindhya Pradesh which was at that time an acceding State within the meaning of section 6 of the Government of India Act, 1935 as amended in 1947.
On the 11th April, 1949 the petitioner was arrested in Delhi on the allegation that he had accepted illegal gratification in order to show favour to Panna Dia mond Mining Syndicate in the matter of the lease of the Diamond Mines at Panna.
In December, 1949 the petitioner along with one Mohan Lal, who was the then secretary in the Ministry of Industries, was put up for trial before the Court of Special Judge, Rewa, constituted under the Vindhya Pradesh Criminal Law Amendments (Special Courts) Ordinance No. V of 1949.
The charges were under sections 120 B, 161 465 and 466 of the Indian Penal Code as adapted for Vindhya Pradesh by the Indian Penal Code (Application to Vindhya Pradesh) Ordinance No. XLVIII of 209 1949.
By his judgment pronounced on the 26th July 1950 the Special Judge acquitted both the accused.
The State preferred an appeal against that acquittal to the Judicial Commissioner of Vindhya Pradesh.
By his judgment pronounced on the 10th March 1951 the Judicial Commissioner reversed the order of acquittal, convicted both the accused and sentenced them to different terms of rigorous imprisonment under the different sections in addition to the payment of certain fines.
On the application of the petitioner and his co accused the Judicial Commissioner on the 12th March 1951 issued a certificate to the effect that four points of law raised in the case and formulated by him in his order Were fit for the consideration of this Court in appeal under article 134 of the Constitution of India.
A petition of appeal was filed in this Court on the strength of this certificate of fitness and it was registered as Criminal Appeal No. 7 of 1951.
As the case involved a substantial question of law as to the interpretation of the Constitution, it was, in April 1953, placed before a Bench of five Judges of this Court as required by article 145(3) of the Constitution.
For convenience of reference we shall call a Bench of five or more Judges as the Constitution Bench.
The validity of the convictions and sentences was challenged before the Constitution Bench on the ground that there had been infringements of articles 14 and 20 of the Constitution.
A further point of law was raised that no appeal lay to the Judicial Commissioner from the acquittal by the special Judge.
By their judgment pronounced on the 22nd May 1953 the Constitution Bench rejected all these objections.
The judgment concluded with the following direction: "The appeal is accordingly directed to be posted for consideration whether it is to be heard on merits".
This was evidently done in view of the fact that the certificate of fitness granted by the Judicial Cormmissioner was limited only to four points of law.
The constitutional points having been disposed of, the appeal was placed before a Division Bench of three Judge who on the 20th October 1953 ordered 27 210 the appeal to be heard on the merits.
The appeal was accordingly put up for hearing before another Division Bench consisting of three Judges.
On the 5th March 1954 this Division Bench allowed the appeal of Mohan Lal and acquitted him but dismissed the appeal of the petitioner with respect to his conviction under sections 161, 465 and 466, Indian Penal Code, as adapted in Vindhya Pradesh, but set aside his conviction on the charge under section 120 B.
The sentence of three years ' rigorous imprisonment was maintained but the sentence of fine was set aside.
On the 18th March 1954 a petition for review was filed on behalf of the petitioner.
It was directed against the judgment of the Constitution Bench pronounced on the 22nd May 1953 repelling the constitutional points as well as against the judgment of the Division Bench dated the 5th March 1954 dismissing the petitioner 's appeal on the merits.
On objection being taken by the Registry against one application being filed for the review of two judgments one of which had been pronounced much earlier than the period allowed for filing a review application, the petitioner filed a second application for review of the judgment of the Constitution Bench and prayed for condonation of the delay in filing the same.
On the 5th April 1954 the application for review was put up for hearing before the same Division Bench which had pronounced the judgment on the merits dated the 5th March 1954.
After considering the points of review relating to that judgment the Division Bench on the same day came to the conclusion that no ground had been made out for review of that judgment and accordingly dismissed the petition.
An order was drawn up as of that date directing the petitioner who had been previously enlarged on bail to surrender and serve out his sentence.
On the 12th April 1954 another petition was filed on behalf of the petitioner praying that the review matter relating to the judgment of the Constitution Bench delivered on the 22nd May 1953 be placed before a Constitution Bench for final disposal.
That review application was put up before a Constitution 211 Bench which on the 17th May 1954 declined to entertain the same.
In the meantime the petitioner had in the last week of April 1954 surrendered and has since then been confined in the Central Jail at Rewa.
The present application has, therefore, been made for a writ of habeas corpus on the allegation that the petitioner has been and is being deprived of his liberty otherwise than in accordance with procedure established by law.
In the present petition the petitioner has again urged that the Court of the Judicial Commissioner of Vindhya Pradesh was not the proper forum for entertaining the appeal against the judgment of the Special Judge and consequently the judgment of the Judicial Commissioner setting aside the acquittal of the petitioner convicting and imposing sentence of imprisonment was void and inoperative.
Alternatively, it has been urged that, assuming that the Judicial Commissioner had jurisdiction to hear the appeal from the Special Judge and his judgment was in accordance with procedure established by law, the appeal filed by the petitioner in this Court against the judgment of the Judicial Commissioner should have been, under article 145(3) of the Constitution, beard and completely disposed of by the Constitution Bench.
As regards the first point as to the incompetency of the Court of the Judicial Commissioner to entertain the appeal from the decision of the Special Judge the same has been fully dealt with by the Constitution Bench and cannot be reagitated.
Indeed, learned counsel appearing in support of this petition has not pressed the same.
The only point urged before us is the alternative plea mentioned above which depends for its decision on a true construction of article 145.
Article 145 by clause (1) authorises this Court, subject to the provisions of any law made by Parliament and with the approval of the President to make rules for regulating generally the practice and procedure of the Court, including, amongst others, rules as to the procedure for hearing appeals, as to the entertainment of appeals under sub clause (c) of clause (1) of article 212 134 and as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review.
Clauses (2) and (3) of the article are in the terms following "(2)Subject to the provisions of clause (3), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.
(3)The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion".
The contention of the petitioner is that the question whether a particular case involves a substantial question of law as to the interpretation of the Constitution is to be examined at the time when the case first comes before this Court.
If at that stage it is found that it is a case involving a substantial question of law as to the interpretation of the Constitution it becomes irrevocably impressed with that character and quality and the minimum number of Judges who are to sit for the purpose of deciding such case must be a Constitution Bench, that is to say, a Bench of at least five Judges.
The argument then proceeds to say that once the Constitution Bench takes seisin of the case and starts the hearing that 213 Bench and that Bench alone must decide the whole of such case, that is to say, decide all questions, constitutional or otherwise, arising in the case.
Sri Purshottam Trikumdas who appears in support of this petition has strongly relied on the language used in clause (3) and contends that "the case" cannot be split up and that the clause requires the entire case to be disposed of by the Constitution Bench.
He, therefore, urges that the Division Bench had no jurisdiction to take up the case involving substantial ques tions of law as to the interpretation of the Constitution and consequently the judgment of that Division Bench pronounced on the 5th March, 1954 was illegal and void.
According to him, his client 's appeal, in the eye of the law, remains undisposed of and as he had been let out on bail until the disposal of his appeal, his detention in jail pursuant to the judgment of the Division Bench, which is a nullity, amounts to deprivation of his personal liberty otherwise than in accordance with procedure established by law and is an infringement of his fundamental right under article 21 of the Constitution.
The argument at first sight certainly appears to be plausible but on a deeper consideration of the constitutional provisions bearing on the subject and the general principles regulating the procedural powers of Courts we are unable to accept the same as sound or well founded.
In this very case the Judicial Commissioner of Vindhya Pradesh had granted a certificate of fitness under article 134(1)(c).
Consequently under the proviso to clause (3) of article 145 the appeal might well have been placed before a Division Bench consisting of less than five Judges.
In that situation, being satisfied that the appeal involved a substantial question of law as to the interpretation of the Constitution the determination of which was necessary for the disposal of the appeal, that Division Bench could refer the question for the opinion of a Constitution Bench and on receipt of the opinion dispose of the appeal in conformity with such opinion; but to accede to the argument of Sri Purshottam Trikumdas will lead us to hold that while a Division Bench of three 214 Judges could split up this very case, had it been posted before it in the first instance, by referring the con stitutional questions to a Constitution Bench for its opinion and then, after receipt of that opinion, disposing of the rest of the case on merits in conformity with such opinion, a Constitution Bench of five or more Judges before which the case happened to be posted in the first instance could not split up the case by deciding the constitutional questions and leaving the rest of the case to be dealt with and disposed of by a Division Bench of less than five Judges on merits in conformity with the opinion of the Constitution Bench thus saving the time of the Constitution Bench.
Reference may also be made to article 228 which authorises the High Court, if satisfied that a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case, to withdraw the case and either to dispose of the case itself or determine the said question of law and return the case to the Court from which it has been so withdrawn so as to enable the said Court to proceed to dispose of the case in conformity with the judgment of the High Court.
Here again learned counsel 's argument leads us to hold that while the High Court can split up a case involving a substantial question of law as to the interpretation of the Constitution a Constitution Bench of this Court cannot do so.
Apart from these provisions of the Constitution there are provisions made by procedural statutes which result in a case being partly heard by one Judge and partly by another Judge.
To cite only a few instances, reference may be made to section 24 and Order 18, rule 15 of the Code of Civil Procedure and sections 350, 526, 528 and 556 of the Code of Criminal Procedure.
The argument of Sri Purshottam Trikumdas, pushed to its logical conclusion, must amount to this that although Courts operating under the ordinary procedural code may split up cases into different stages for the purpose of hearing and decision) a Constitution Bench of this Court cannot do so if a case involving substantial questions of law as to 215 the interpretation of the Constitution happens to be posted before it in the first instance.
Learned counsel for the petitioner recognises the incongruity that results from his argument but contends that it cannot be helped because the relevant provisions referred to above expressly sanction the splitting up of cases whereas the body of clause (3) of article 145 does not.
His argument is that in the cases mentioned above splitting up of cases has to be allowed because the special provisions of the Constitution or other statutes provide for such splitting up in those cases.
He contends that the very fact that these provisions had to be made clearly indicates that but for them there could not have been any splitting up of the case.
It is said that these provisions are exceptions to the general rule of indivisibility of a case.
We are unable to accept this reasoning as correct.
In the first place the proviso to article 145(3), article 228 and the other provisions of the Codes referred to above quite clearly indicate that the splitting up of cases into different stages for bearing and decision is not repugnant to the Constitution or the general principles of procedural law.
The underlying principle of the Constitution is clear and all that it insists upon is that all constitutional questions should be heard and decided by a Bench of not less than five Judges.
As long as this requirement is fulfilled there can be no constitutional objection to the rest of the case being disposed of by a Division Bench of less than five Judges, so as to save the time of the Constitution Bench of five or more, Judges.
In the next place we are not aware of any such general rule of indivisibility as is being insisted upon by learned counsel.
There is nothing in principle which requires that a case,must always be decided in its entirety by one Judge or one set of Judges even though such a case may conveniently be dealt with in two or more stages.
Indeed, in Maulvi Muhammad Abdul Majid vs Muhammad Abdul Aziz(1) the Privy Council pointed out that where a Judge had before (1) L.R. 24 I.A. 22.
216 him a case consisting of two parts, a question of title and an incidental question of account depending on title, it did not require any provision of the Civil Procedure Code to authorise him to decide the first question and reserve the second for further investigation and that to treat such a proceeding as beyond the power of the Court and as an error which barred the proceedings reserved for further decision was a serious miscarriage of justice.
Indeed, the Court often exercises its inherent power, if it thinks fit to do so, to decide questions of jurisdiction or limitation or the like as preliminary questions reserving other questions of fact for future investigation.
The decision of a case at two or more stages may and often does result in the case not being decided by the same Judge, for the Judge who decided at the first stage may, by reason of death, retirement or transfer, be not available for deciding the case at the later stages, it follows, therefore, that no argument can be founded on any supposed general rule of indivisibility of a case for the purpose of its hearing and decision.
The consideration that there is no such general rule as is relied on by learned counsel and that the splitting up of cases is not generally repugnant to law and in particular to the Constitution, leads us to the conclusion that in construing clause (3) of article 145 no quality of indivisibility need be attributed to the words "the case" used therein.
A case may, to begin with, involve a substantial question of law as to the interpretation of the Constitution, but it may cease to do so at a later stage.
Suppose a case which involves a constitutional question is placed before a Constitution Bench but learned counsel appearing in support of the case intimates to the Bench that he does not press any constitutional point, surely he can not, in that situation, insist that the time of a Bench of five or more Judges should be spent on the determination of a case which, by his own election, has ceased to involve any constitutional question.
Likewise, when the constitutional questions involved in the case are disposed of by a Constitution Bench what 217 remains of the case cannot properly or appropriately be described as still a "case involving a substantial question of law as to the interpretation of this Constitution".
It should be borne in mind that when a case or appeal is properly admitted to this Court all that the parties are entitled to is a decision of this Court and not of any Particular Bench.
So long as the minimum number of Judges which the Constitution and the rules framed by this Court prescribe are present to hear and decide the questions raised from stage to stage, they represent the Court for the purpose of giving decisions on its behalf and the parties get all that they are entitled to under the law.
If a Court is entitled to decide a case in stages, as the Privy Council has held it can, there is no reason why article 145(3) should be so construed as to deprive this Court of that inherent power.
It will involve no violation of any principle of natural justice or of any legal principle if we construe clause (3) of article 145 as requiring only that the minimum number of five Judges must sit for the purpose of deciding any case in so far and as long as it involves a substantial question of law as to the interpretation of this Constitution.
We find nothing in the language of clause (3) of article 145 which militates against this interpretation of that clause.
Indeed, it is on this interpretation that the practice has grown up in this Court for a Constitution Bench to dispose of all constitutional questions and to leave the other subsidiary questions for disposal by a Division Bench of less than five Judges in conformity with the opinion of the Constitution Bench.
There is nothing that we find in the body of clause (3) of article 145 which compels us to depart from the famous maxim cursus curiae est lex curiae which was laid down by Lord Coke in Burrowes vs High Commission Court(1) and which was quoted with approval in Habibar Rahman vs Saidannessa Bibi(2).
For reasons stated above we consider that a good and valid return has been made by the respondents to the rule nisi issued to them and this application must be dismissed.
We order accordingly.
(1) 3 Bulst.
48, 53.
331, 335.
218 SINHA J. I regret to have to differ from my learned brethren on the construction of article 145(3) of the Constitution which is the main question in controversy in this case.
Clause (3) of article 145 is in these terms: "The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the 'Purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion".
It is noteworthy that the Constitution has not vested this Court with complete power to make rules as to the constitution of Benches for hearing matters coming before this Court in its Original, Appellate or Advisery Jurisdiction.
Clause (2) of article 145 has invested this Court with power to make rules fixing the minimum number of Judges who are to sit for any purpose and for defining the powers of single Judges and Division Courts.
But this power is expressly made subject to the limitation laid down in clause (3) quoted above; that is to say, where any case involves a substantial question of law as to the interpretation of the Constitution (omitting the words not material for our present purpose) the minimum number of Judges prescribed by the Constitution to decide such a case is five.
A case may involve questions of law as to the interpretation of the Constitution, as also other questions.
In this case we have to determine whether clause (3) contemplates the whole case or a part of a 219 case.
In my opinion, the Constitution while laying down clause (3) of article 145 contemplates the whole matter in controversy arising in a case which may include substantial questions of law as to the interpretation of the Constitution as also other questions.
The main clause (3), excepting cases coming within the purview of the proviso does not contemplate a splitting up of a case into parts, one part involving substantial questions of law as to the interpretation of the Constitution and another part or parts not involving such questions.
My reasons for coming to this conclusion are as follows: Clause (3) itself read along with the proviso makes a distinction between a "case" and a "question" of the nature indicated in the proviso to the clause.
The Constitution has clearly indicated that cases coming within the purview of the proviso may be split up so as to admit of the questions of constitutional importance being determined by a Bench of at least five Judges who may be described for the sake of convenience as "Constitution Bench" in contradistinction to a Division Court consisting of less than five Judges, as is contemplated in the proviso.
The main clause (3) requires a case of the description therein set out to be heard and decided by a Constitution Bench, whereas the proviso contemplates that only the question of constitutional importance (using a compendious phrase) has to be decided by a Constitution Bench and the case out of which such a question arises remaining in the seisin of the Division Court before which the case was originally placed for hearing.
The Constitution has placed cases involving substantial questions of law of constitutional importance on a special footing.
If the framers of the Constitution had intended that not the whole case but only particular questions of the nature indicated had to be heard by a minimum number of five Judges, they would have used words similar to those used in the proviso making it permissible for the Constitution Bench to give its opinion for the decision of the case by a Division Court in conformity with that opinion, 220 A reference to the terms of article 228 of the Constitution would also show that the framers of the Constitution were fully alive to the difference between the decision of the "case itself" and a "question of law" of constitutional importance involved in that case.
It has made clear in that article that the High Court shall either decide the whole case including the question of law as to the interpretation of the Constitution which was necessary for the disposal of the case or determine only such a question or questions and return the case to the original court for disposal in conformity with the judgment of the High Court on such question or questions.
The Constitution made these specific provisions to emphasize that there is a distinction between determining the case itself and determining a substantial question of law of constitutional importance.
Can it be said that if clause (3) of article 145 had been enacted without the proviso, a case could be heard piecemeal first by a Constitution Bench which would determine only questions of law as to the interpretation of the Constitution, and then the residue of the case being heard and determined by a Division Court? That, in my opinion, would not be in compliance with the imperative provisions of the main clause (3).
The framers of the Constitution therefore enacted the proviso in the nature of an exception to the general rule laid down in the main clause (3).
It has to be observed that the proviso is limited to appeals only, subject to the further exception that such appeals should not have come up to this Court through the process laid down in article 132 of the Constitution.
It is thus clear that not all cases contemplated in the main clause (3) but only appeals of a particular description would come within the qualifying provisions of the proviso.
The word "case" has not been defined but it may be taken as settled law that it is much wider than a "suit" or an "appeal".
Hence whereas the proviso would apply to appeals brought up to this court, except those under article 132 of the Constitution, the main clause (3) would apply to all appeals and all 221 other matters coming up to this Court in its Original, Appellate and Advisory jurisdictions.
In my opinion, there cannot be the least doubt that the main provisions of clause (3) are all embracing, and contemplate all cases coming up to this Court.
It has not been contended that the present case comes within the purview of the proviso but it has been said that if it is open to a Division Court to refer a question of constitutional importance to a Constitution Bench, why should not a Constitution Bench be competent to refer questions other than those of constitutional importance to a Division Court? The answer is that whereas the former is contemplated by the Constitution in terms, the latter is not.
Nor are there any rules to that effect.
But it has been further observed that the splitting up of a case into parts, one involving questions of constitutional importance and the remaining part not involving questions of that kind, is not against the provisions of the Constitution.
But, in my opinion, if the Constitution has made a specific provision as to the splitting up of a case into parts, one cognisable by a Court of higher jurisdiction like a Constitution Bench and the rest by a court of lower jurisdiction like a Division Court, the argument is not available that a splitting up of a case apart from those specific provisions is also permissible.
In this connection reference was made to certain provisions of the Code of Civil Procedure as also of the Code of Criminal Procedure to show that those Codes do contemplate hearing of the same case in part by different courts, but those are all courts of co ordinate jurisdiction in which the question of the power of the court itself relatively to the subject matter of the case is not in question.
The court which originally dealt with the case and the court which finally came to hear and determine the matter were each one of them competent to deal with the whole matter or any part of it.
That is not the position here.
In this case the argument on behalf of the petitioner is that as admittedly his appeal involved substantial questions of law as to the interpretation of the Constitution and as it did not come 222 within the purview of the proviso to clause (3) of article 145 of the Constitution, it should have been dealt with throughout by a Constitution Bench.
It was suggested in answer to this argument that after the questions of law of constitutional importance had been dealt with by the Constitution Bench the case ceased to be one involving such questions and therefore could have been heard by a Division Court.
But the difficulty in accepting this argument is that once a Constitution Bench was seized of the case, it could not transfer it to another Bench for sharing the decision of that case with it.
That Bench should have heard out the whole case and it had not the power to direct, and it did not so direct, that the remaining part of the case should be heard by a Division Court.
Once a Constitution Bench is seized of the case, it has to hear the case to its conclusion.
There was no process known to the rules framed under the rule making power of this Court by which a case once it came before a Constitution Bench could get transferred from that Bench to a Division Court either automatically or by orders of any authority.
But it has been suggested that it may happen that a Constitution Bench may start the hearing of the case, and before the hearing is concluded one of the Judges is by reason of death or otherwise disabled from hearing out the case and in that event the Chief Justice has the power to constitute another Bench.
But that is quite a different matter.
In that case the hearing by the previous Bench comes to nothing and the Bench constituted afresh by the Chief Justice has to hear out the whole case afresh.
It has also been suggested on the other side that a "case" may mean a part of a case.
In my opinion, that submission is not well founded; because, if that argument were accepted and pushed to its logical conclusion, it may make the provisions of the main clause (3) of article 145 nugatory.
Article 132 of the Constitution has been, as indicated above, excepted from the operation of the proviso to clause (3).
Suppose an appeal is brought to this Court under article 132 of the Constitution as the case involved substantial 223 questions of law as to the interpretation of the Con stitution.
That case besides involving questions of that character, may also involve other questions.
If the argument that a "case" includes part of a case were accepted, then it will be permissible for a Constitution Bench to hear the questions of constitutional importance and leave the rest of the case to be determined by a Division Court, though such a case is expressly excluded from the operation of the proviso and thus is directly within the terms of the main clause (3).
Hence every case coming before this Court involving a question of constitutional importance may be dealt with in part in so far as it relates to that question by a Constitution Bench and the remaining part by a Division Court.
That, in my opinion, was not intended by the framers of the Constitution.
The term "case" therefore must mean the whole matter in controversy before this Court.
Such a matter may relate to one of several questions in controversy in the original court, if the determination of that question is sufficient to dispose of the case within the meaning of the Explanation to article 132 of the Constitution.
It was further argued by the learned Attorney General that the whole clause (3) of article 145 along with the proviso must be read together.
But even so read, the language of clause (3) does not warrant the hearing of the case piecemeal by different Benches unless it comes within the purview of the proviso.
The proviso is meant to cover only a limited class of cases which otherwise would have come within the purview of the main clause (3).
But the proviso cannot have a larger effect than is justified by its language, viz., that only a question of that description has to be referred for the opinion of the larger Bench, the case itself remaining on the file of the smaller Bench.
The proviso thus makes a clear distinction between a "case" and a "question".
It has also been said there is an inherent power in the court to transact its business according to its established practice.
In the first place, this Court is still in its formative stages and it cannot be said to 224 have an "established practice".
Secondly, it cannot establish a practice in the teeth of the provisions of the Constitution which it is pledged to uphold.
The reference to the decision of the Privy Council in Moulvi Muhammad Abdul Majid vs Muhammad Abdul Aziz(1) is not apt because in that case the hearing at the two stages of the trial was to be done by a court of coordinate jurisdiction; that is to say, a court which could hear and determine the whole case or each of the two parts of the case taken separately by itself, unlike the present case in which the two parts of the hearing have been done by two courts of unequal power.
Similarly the reference to the maxim " cursus curiae est lex curiae" of Coke C. J. in Burrowes vs High Commission Court(1), referred to in Habibar Rahman vs Saidannessa Bibi(3) and to the other cases all proceed on the assumption that there is nothing in the statute law against such a course being taken.
But, in my opinion, such a nebulous practice is opposed to the positive provisions of clause (3) of article 145.
In my opinion therefore, the present case comes directly within the main clause (3) of article 145 of the Constitution and is admittedly not covered by the proviso to that clause.
That being so, the petitioner 's appeal to this Court has not been heard and determined in accordance with the procedure established by this Constitution and therefore the petitioner is entitled to the benefit of the protection afforded by article 21 of the Constitution.
His appeal, therefore, has got to be heard and determined in accordance with the procedure laid down in article 145(3) of the Constitution.
I would therefore allow the petition to this extent only that the appeal be heard by a Constitution Bench on a declaration that the judgment of the Division Court dated the 5th March 1954 is not that of a competent court.
BY THE COURT: In accordance with the judgment of the majority, the petition is dismissed.
(1) L.R. 21 I.A. 22.
(2) 3 Bulst.
48, 53.
(3) I.L.R. , 335.

summary/full:
Held (Per MUKHERJEA C.J., DAS, VIVIAN BOSE, and IMAM JJ.
SINHA J. dissenting) that a Constitution Bench of five or more Judges before which a case happens to be posted in the first instance 207 is competent to split up the case by deciding the constitutional questions and leaving the rest of the case to be dealt with and disposed of by a Division Beach of less than five Judges on merits in conformity with the opinion of the Constitution Bench.
The splitting up of cases into different stages for hearing and decision is not repugnant to the Constitution or the general principles of procedural law.
The underlying principle of the Constitution is clear and all that it insists upon is that all constitutional questions should be heard and decided by a Bench of not less than five Judges.
As long as this requirement is fulfilled there can be no constitutional objection to the rest of the case being disposed of by a Division Bench of less than five Judges, so as to save the time of the Constitution Bench of five or more Judges.
There is no general rule of indivisibility of a case for the purpose of its hearing and decision: vide.proviso to Article 145(3) and Article 228 of the Constitution, section 24 and Order 18, Rule 15 of the Code of Civil Procedure and sections 350, 526, 528 and 556 of the Code of Criminal Procedure.
Article 145(3) of the Constitution cannot be so construed as to deprive the Supreme Court of the inherent power of splitting up a case for the purpose of hearing and decision .
Per SINHA J. The Constitution while laying down clause (3) of Article 145, contemplates the whole matter in controversy arising in a case, which may include substantial questions of law as to the interpretation of the Constitution as also other questions.
The main clause (3), excepting cases coming within the purview of the proviso, does not contemplate a splitting up of a case into parts, one part involving substantial questions of law as to the interpretation of the Constitution and another part or parts not involving such questions.
The language of clause (3) of Article 145 does not warrant the hearing of a case piecemeal by different Benches unless it comes within the purview of the proviso.
The proviso is meant to cover only a limited class of cases which otherwise would have come within the purview of the main clause (3).
But the proviso cannot have a larger effect than is justified by its language, viz., that only a question of that description has to be referred for the opinion of the larger Bench, the case itself remaining on the file of the smaller Bench.
The proviso thus makes a clear distinction between a "case" and a "question".
Maulvi Muhammad Abdul Majid vs Muhammad Abdul Aziz (L.R. 24 I.A. 22), Burrowes vs High Commission Court (3 Bulst.
48) and Habibar Rahman vs Saidannessa Bibi (I.L.R. , referred to.