judgement:
Appeal No. 297 of 1955.
Appeal from the judgment and decree dated April 7, 1954, of the Patna High Court in Misc.
Judicial Case No. 327 of 1951.
A. V. Viswanatha Sastri and B. K. Sinha, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
October 1.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This is an appeal with the, certificate issued by the High Court of Judicature at Patna under section 66A(2) of the Income tax Act (hereinafter called the Act) and it raises a, short question of the construction of section 34(1)(b) of the Act.
This 12 question arises in this way.
Proceedings.
taken by the Income tax Officer, Special Circle, Patna, against Maharaja Bahadur Rama Rajaya Prasad Singh, the father of the appellant, to levy income tax for the year 1945 46.
The total income assessed to income tax by the said order was Rs. 1,60,602.
This amount included the sum of Rs. 93,604 received by the assessee on account of interest on arrears of rent due to him after deduction of collection charges.
It was urged before the Income tax Officer by the assessee that this amount was not liable to be taxed in view of the decision of the Patna High Court in Kamakshya Narain Singh vs Commissioner of Income Tax (1).
The Income tax Officer, however, held that, since the department had obtained leave to appeal to the Privy Council against the said decision, the matter was sub judice and so be would not be justified in accepting the assessee 's contention.
In the result, he included the said amount in the total income for the purposes of assessment, but ordered that the realisation of the tax on the &aid amount should be stayed till the decision of the Privy Council or March 31, 1947, whichever was earlier.
This order was passed under section 23(3) of the Act on December 31, 1945.
Against this order the assessee preferred an appeal before the Appellate Assistant Commissioner of Income tax, Patna.
On May 8, 1946, the appellate authority held that the Income tax Officer was bound to follow the decision in the case of Kamakshya Narain Singh (supra) (1) and so, he set aside the order under appeal in regard to the amount of Rs. 93,604 and directed the Income tax Officer to make fresh assessment.
He also observed that it was not clear as to what portion of the said amount was interest on arrears of agricultural rents and what portion related to interest on arrears of non agricultural rents.
The Income Tax Officer was accordingly directed to determine the latter amount and to levy tax on it.
Pursuant to this appellate order the Income tax Officer made a fresh assessment under sections 23(3) and 31 of the Act on August 20, 1946.
By this order the (1) [1946) 13 total amount of income liable to tax was determined after deducting the whole of the amount of Rs. 93,604 from it.
Some other minor reductions were also allowed in compliance with the appellate order.
The department did not challenge either the appellate order or the subsequent order passed by the Income tax Officer in pursuance of the said appellate order.
Subsequently, on July 6, 1948, the appeal preferred by the department to the Privy Council against the decision of the Patna High Court in Kamakshya Narain Singh 's case (1) was allowed and it was held that interest on arrears of rent payable in respect of agricultural land is not agricultural income for it is neither rent nor revenue derived from land.
As a result of this decision, the Income tax Officer issued a notice to the assessee under section 34 of the Act on September 25, 1948.
This notice called upon the assessee to file a fresh return as the Income tax Officer had reason to believe that a part of the assessee 's income assessable to income tax for the year ending March 31, 1946, had escaped assessment.
It appears that this notice was found to be defective, and so under the provisions of section 34, as amended, a fresh notice was issued by the officer to the assessee on March 18, 1949.
The proceedings thus taken by the officer under section 34 ultimately led to a revised assessment order passed under section 23(3) and section 34 of the Act and the amount of Rs. 93,604 was added to the assessment amount as interest on arrears of rent.
This revised assessment order was passed on April 30, 1949.
The assessee appealed against this order but the appellate authority dismissed the assessee 's appeal and confirmed the said order on July 26, 1949.
He held that the subsequent decision of the Privy Council in the case of Kamakshya Narain Singh (supra) (1) was information within the meaning of cls.
(a) and (b) of section 34(1) and that the Income tax Officer bad reason to believe that a part of the assessee 's income had escaped assessment.
The assessee then moved the Income tax Appellate Tribunal; but on August 21, (1) 14 1950, the tribunal confirmed the order passed by the appellate authority and dismissed the assessee 's appeal.
It was held that the provisions of a. 34 as amended in 1948 applied to the case and that the decision of the Privy Council brought it within the purview of sub section
(1)(b) of section 34.
Meanwhile the assessee died and the appellant succeeded to the estate of his deceased father.
He then filed an application under section 66(1) of the Act requiring the tribunal to refer the question of law raised in the case to the Patna High Court for its opinion.
The tribunal rejected this application on February 27, 1951.
Thereupon the appellant moved the Patna High Court under section 66(2) of the Act; his application was allowed and the tribunal was directed by the High Court on December 15, 1951, to state the case and refer the question of law for its opinion.
In compliance with the requisition of the High Court the tribunal by its order passed on July 23, 1952, submitted a statement of the case and referred to the High Court for its opinion the question of law raised by the appellant.
The question thus raised is: " Whether in the circumstances of the case the assessment order under section 34 of the Act of the interest on arrears of rent is legal ?" On April 7, 1954, this reference was heard by V. Ramaswamy and C. P. Sinha JJ.
of the Patna High Court and the question was answered by them in favour of the department.
The appellant then applied for and obtained a certificate from the Patna High Court on September 13, 1954.
The High Court has certified under section 66A, sub section
(2), of the Act that the case raises a question of law of a substantial kind and is otherwise a fit case for appeal to this court.
That is how the present appeal has come before us; and the question which it raises for our decision is about the true construction of section 34(1)(b) of the Act.
Section 34 of the Act has been amended in 1939 and in 1948.
It is conceded by Mr. Viswanatha Sastri, for the appellant, that the present case is governed by the section as it was amended in 1948.
This amended section 34, sub section
(1), deals with cases of income escaping assessment in two clauses.
Clause (a) covers cases 15 where income has escaped assessment by reason of the omission or failure on the part of the assessee to make a return of his income under section 22.
We are not concerned with this clause.
Clause (b) of section 34(1) provides inter alia that " notwithstanding that there has been no omission or failure as mentioned in cl.
(a) on the part of the assessee, if the Income tax Officer has, in consequence of information in his possession, reason to believe that income, profits or gains chargeable to income tax have escaped assessment for any year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or that excessive loss or depreciation allowance have been computed, he may, at any time within four years of the end of that year serve on the assessee a notice containing all or any of the requirements, which may be included in a notice under sub section
(2) of section 22, and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance, and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section ".
It is clear that two conditions must be satisfied before the Income tax Officer can act under section 34(1)(b).
He must have information in his possession, which, in the context, means that the relevant information must have come into his possession subsequent to the making of the assessment order in question and this information must lead to his belief that income chargeable to income tax has escaped assessment for any year, or that it has been under assessed or assessed at too low a rate or has been made the subject of excessive relief under the Act.
Two questions are raised by Mr. Sastri under this sub section in the present appeal.
He contends that the relevant information means information as to facts and cannot include the decision of the Privy Council on a point of law; and he argues that, where income has been duly returned for assessment and an assessment order has been passed by the Income tax Officer, it cannot be said that any income has escaped assessment within section 34(1)(b).
Thus the appellant 's case is that both the conditions required by section 34(1)(b) 16 have not been satisfied and so the order of revised assessment passed against the appellant is illegal.
It is not disputed that, according to its strict literal ' meaning, the word " information " may include knowledge even about a state of tile law or a decision on a point of law.
The argument, however, is that the context requires that the word " information " should receive a narrower construction limiting it to facts or factual material as distinguished from information as to the true state of the law.
In support of this argument Mr. Sastri referred to the marginal notes of sections 19A and 20A as well as the province, s of section 22(3) and section 28 and urged that the information contemplated by these provisions is information as to facts or parti culars and has no reference to the state of law or to any question of law; and so the said word in section 34(1)(b) should be construed to mean only factual information.
We are not impressed by this arguments If the word " information" used in any other provision of the Act denotes information as to facts or particulars, that would not necessarily determine the meaning of the said word in section 34(1)(b).
The denotation of the said word would naturally depend on the context of the particular provisions in which it is used.
It is then contended that sections 33B and 35 confer ample powers on the specified authorities to revise Income tax Officer 's orders and to rectify mistakes respectively and so it would be legitimate to construe the word "information " in section 34(1)(b) strictly and to confine it to information in regard to facts or particulars.
This argument also is not valid.
If the word "information " in its plain grammatical meaning includes information as to facts as well as information as to the state of the law, it would be unreasonable to limit it to information as to the facts on the extraneous consideration that some cases of assessment which need to be revised or rectified on the ground of mistake of law may conceivably be covered by sections 33B and 35.
Besides, the application of these two sections is subject to the limi tations prescribed by them; and so the fact that the said sections confer powers for revision or rectification would not be relevant and material in construing 17 section 34(1)(b).
The explanation to section 34 also does not assist the appellant.
It is true that under the explanation production before the Income tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income tax Officer would not necessarily amount to disclosures within the meaning of the said section; but we do not see how this can have any bearing oil the construction of cl.
(b) in section 34(1).
On the other hand, one of the cases specifically mentioned in section 34(1)(b) necessarily postulates that the word "information" must have reference to information as to law.
Where, in consequence of information in his possession, the Income tax Officer has reason to believe that income has been assessed at too low a rate, he is empowered to revise the assessment; and there can be no doubt that the belief of the Income tax Officer that any given income has been assessed at too low a rate may in many cases be due to information about the true legal position in the matter of the relevant rates.
If the word " information " in reference to this class of cases must necessarily include information as to law, it is impossible to accept the argument that, in regard to the other cases falling under the same provision, the same word should have a narrower and a more limited meaning.
We would accordingly hold that the word " information " in section 34(1)(b) includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions.
If that be the true position, the argument that the Income tax Officer was not justified in treating the Privy Council decision in question as information within section 34(1)(b) cannot be accepted.
in regard to the other condition prescribed by section 34(1)(b).
When can income be said to have escaped assessment? Mr. Sastri argued that the word "assessment " does not mean only the order of assessment, but it includes all steps taken for the purpose of levying the tax and during the process of taxation.
That no doubt is true; but the wide denotation of the word 3 18 " assessment" does not really assist the appellant; it only shows that along with the order of assessment which is an important act in the process of taxation, other acts and steps adopted in the course of taxation are also included in the word ; but it is with this " most critical act in the process of taxation " with which we are concerned in the present appeal.
Then it is urged that the word "escaped " according to the Oxford English Dictionary means "to elude (observations, search, etc.); to elude the notice of a person " ; and the contention is that it is only where income has not been returned for assessment that it can be reasonably said that income has escaped assessment.
The dictionary meaning of the word does not support Mr. Sastri 's contention.
According to the same dictionary the word " escape " also means " to get clear away from (pursuit or pursuer); to succeed in avoiding (anything painful or unwelcome)"; so that judging by +,he dictionary meaning alone it would be difficult to ( confine the meaning of the word " escape " only to cases where no return has been submitted by the assessee.
Even if the assessee has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment.
In the present case, interest on arrears of rent received by the assessee from his agricultural lands were brought to the notice of the Income tax Officer; the question as to whether the said amount can be assessed in law was considered and it was ultimately held that the relevant decision of the Patna High Court which was binding on the department justified the assessee 's claim that the said income was not liable to be assessed to tax.
There is no doubt that a part of the assessee 's income had not been assessed and, in that sense, it has clearly escaped assessment.
Can it be said that, because the matter was considered and decided on the merits in the light of the binding authority of the decision of the Patna High Court, no income has escaped assessment when the said Patna High Court decision has been subsequently reversed by the Privy Council ? We see no 19 justification for holding that cases of income escaping assessment must always be cases where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted.
In our opinion, even in a case where a return has been submitted, if the Income tax Officer erroneously fails to tax a part of assessable income, it is a case where the said part of the income has escaped assessment.
The appellant 's attempt to put a very narrow and artificial limitation on the meaning of the word escape " in section 34(1)(b) cannot therefore succeed.
Mr. Sastri, however, argues that the narrow construction of the expression "has escaped assessment " for which he contends has been approved by the Privy Council in Rajendranath Mukherjee vs Income tax Commissioner (1).
He relies more particularly on the observation made in the judgment in this case that "the fact that section 34 requires a notice to be served calling for a return of income which has escaped assessment ,strongly suggests that income which has already been duly returned for assessment cannot be said to have escaped 'assessment within the statutory meaning".
In order to appreciate the effect of this observation it would be necessary to examine the material facts in the case and the specific points raised for the decision of the Privy Council.
It appears that, in 1930 the Income tax Officer had made an assessment order on Burn & Co., which was an unregistered firm, assessing them ' to income tax and super tax for the year 192728 under the Act.
The individual partners of Burn & Co., who were the appellants before the Board, contended that it was not competent to the officer to make the impugned assessment on the firm after the expiry on March 31, 1928, of the year in respect of which the assessment was made.
The Commissioner of Income tax met this plea by referring to the other relevant facts which explained the delay in making the assessment order.
Towards the end of 1926 27, the partners of the registered firm of Martin & Co., had purchased the business and assets of Burn & Co. This transaction was effected not on behalf of the firm (1) (1933) 61 I.A. IO, 16.
20 of Martin & Co., but by the partners of the firm as individuals.
In April 1927, the Income tax Officer of District I issued a notice to Burn & Co., under section 22(2) calling for a return of their total income for the year ending March 31, 1927, with a view to assessing them for the year 1927 28.
A similar notice was issued by the Income tax Officer of District 11.
When these notices were issued both the officers did not know that the business of Burn & Co., had been bought by the partners of Martin & Co. Subsequently this transaction was brought to the knowledge of the income tax authorities whereupon Burn & Co. 's file was transferred by the officer dealing with District 11, and in February 1928, an assessment order was made on Martin & Co., in respect of the combined incomes returned by Martin & Co., and Burn & Co., on the footing that the business of Burn & Co., had become a branch of Martin & Co. Martin & Co., appealed against this assessment and their appeal was allowed by the High Court in May 1930.
It was held that an income of a registered firm cannot, for the purpose of the Act., be aggregated with the income of an unregistered firm but that the income of each must be separately assessed irrespective of the fact that the persons interested in the profits of both concerns are the same.
In consequence of this decision, the assessment made on Martin & Co., was amended by the elimination therefrom of the income returned by Burn & Co., and in November 1930, an assessment was made on Burn & Co., on their income as returned by them in Janu ary 1928.
It was this assessment which was the subject matter of the appeal before the Privy Council.
It would thus be noticed that the principal question which the appellants raised before the Privy Council was: Whether the assessment made under section 23(1) on the appellants in November 1930 for the year 1927 28 was a legal assessment ? The argument was that, on a true construction of the Income tax Act, it was obligatory on the Income tax Officer to complete the assessment proceedings within the year of assessment, and in the event of such assessment not being so completed the only remedy open to the income tax 21 authorities was to proceed under section 34.
This argument was repelled by the Privy Council.
Their Lordships held that neither section 23 nor any other express provision of the Act limited the time within which an assessment must be made.
They then examined the other argument urged by the appellants that section 34 implied a prohibition against the making of an assessment after the expiry of the tax year.
In dealing with this argument, section 34 was construed and it was observed that the argument sought to put upon the word "assessment " too narrow a meaning, and upon the word " escaped " too wide a meaning.
It was in this connection that their Lordships approved of the observation made by Rankin C. J. in Re: Lachhiram Basantlal (1) that I. . income has not escaped assessment if there are pending at the time proceedings for the assessment of the assessee 's income which have not yet terminated in a final assessment thereof ".
In other words, the conclusion of the Privy Council was that so long as assessment proceedings are pending against an assessee and no final order has been passed thereon, it would be premature to suggest that any income of the assessee has escaped assessment.
It is only after the final order levying the tax has been passed by the Income tax Officer that it would be possible to predicate that any part of the assessee 's income has escaped assessment.
In the result their Lordships held that " since proceedings pursuant to the notice issued against the appellants under section 22(2) had been pending and no order had been passed against the appellants in the said proceedings, it would not be possible to accept their argument that the Income tax Officer should have taken action against them in respect of the income for the relevant year under section 34 of the Act ".
If this decision is considered in the light of the relevant facts and the nature of the argument raised before the Privy Council by the appellants, it would be difficult to accept the contention that, according to the Privy Council, section 34 would be inapplicable wherever notice under section 22(2) has been issued against an assessee, a return has been submitted by him and (1) (1030) I.L.R. , 912.
22 a final order has been passed by the Income tax Officer in the said assessment proceedings.
To say that, so long as the assessment proceedings are pending, it is impossible to assume that any income has escaped assessment is very much different from saying that income cannot be said to have escaped assessment wherever assessment proceedings have been taken and a final order has been passed on them.
We must, therefore, hold that this decision does not support Mr. Sastri 's contention about the inapplicability of section 34 in the present case.
In this connection it may be relevant to refer to the decision of the Calcutta High Court in Be: Lachhiram Basantlal (supra) (1) because, as we have already pointed out, the statement of the law made by Rankin C. J. in regard to the effect of section 34 of the Act in this case has been expressly approved by the Privy Council in the case of Rajendra Nath Mukherjee (supra) (2).
While dealing with the assessees ' argument that the order of assessment was invalid Since it had been passed more than one year after the expiry of the relevant financial year and that the Income tax Officer might have acted under section 34, Rankin C. J. stated that income cannot be said to have escaped assessment except in the case where an assessment has been made which does not include the income.
It is true that this observation is obiter but it is fully consistent with the subsequent statement of the law made by the learned Chief Justice which has received the approval of the Privy Council.
Mr. Sastri has also relied on the decision of this Court in Messrs. Chatturam Horliram Ltd. vs Commissioner of Income tax, Bihar & Orissa (1) in support of his construction of section 34.
In Chatturam 's case (supra) (3) the assessee had been assessed to income tax which was reduced on appeal and was set aside by the Income tax Appellate Tribunal on the ground that the Indian Finance Act of 1939 was not in force during the assessment year in Chota Nagpur.
On a reference the decision of the tribunal was upheld by the High (1) Cal.
909, 912.
(2) (1933) 61 I.A.10, 16.
(3) ; 23 Court.
Subsequently the Governor of Bihar promulgated the Bihar Regulation IV of 1942 and thereby brought into force the Indian Finance Act of 1939 in Chota Nagpur retrospectively as from March 30, 1939.
This ordinance was assented to by the Governor General.
On February 8,1944, the Income tax Officer passed an order in pursuance of which proceedings were taken against the assessee under the provisions of section 34 and they resulted in the assessment of the assessee to income tax.
The contention which was raised by the assessee in his appeal to this Court was that the notice issued against him under section 34 was invalid.
This Court held that the income, profits or gains sought to be assessed were chargeable to income tax and that it was a case of chargeable income escaping assessment within the meaning of section 34 and was not a case of mere non assessment of income tax.
So far as the decision is concerned, it is in substance inconsistent with the argument raised IVY Mr. Sastri.
He, however, relies on the observations made by Jagannadhadas J. that " the contention of the learned counsel for the appellant that the escapement from assessment is not to be equated to non assessment simpliciter is not without force " and he points out that the reason given by the learned judge in support of the final decision was that though earlier assessment proceedings had been taken they had failed to result in a valid assessment owing to some lacuna other than that attributable to the assessing authorities notwithstanding the chargeability of income to the tax.
Mr. Sastri says that it is only in cases where income can be shown to have escaped assessment owing to some lacuna other than that attributable to the assessing authorities that section 34 can be invoked.
We do not think that a fair reading of the judgment can lead to this conclusion.
The observations on which reliance is placed by Mr. Sastri have naturally been made in reference to the facts with which the Court was dealing and they must obviously be read in the context of those facts.
It would be unreasonable to suggest that these observations were intended to confine the application of section 34 only to cases where 24 income escapes assessment owing to reasons other than those attributable to the assessing authorities.
Indeed Jagannadhadas J. has taken the precaution of adding that it was unnecessary to lay down what exactly constitutes escapement from assessment and that it would be sufficient to place their decision on the narrow ground to which we have just, referred.
We are satisfied that this decision is of no assistance to the appellant 's case.
It appears that the construction of section 34 has led to a divergence of judicial opinion in the High Courts of this country, and so it would be necessary to refer briefly to the decisions to which our attention was invited in this appeal.
In Madan Lal vs Commissioner of I. T., Punjab (1), the majority decision of the Full Bench of the Lahore High Court held that section 34 of the Act, as it stood then, was not confined to cases where income had not been returned at all.
It applied also to cases where an item of income is included in the return made by the assessee but is left unassessed by the Income tax Officer, or, if assessed in the first in stance, the assessment is cancelled by any appellate or revisional authority.
Din Mohammad J. who delivered the majority judgment has expressed his agreement with the opinion of Coutts Trotter C. J. in The Commissioner of Income tax vs Raja of Parlakimedi (2) that the words " escaped assessment " apply even " to cases where the Income tax Officer has deliberately adopted an erroneous construction of the Act as much as to a case where an officer has not considered the matter at all, but simply omitted the assessable property from his view and from his assessment ".
The next case which has been cited before us is the decision of the Bombay High Court in The Commissioner of Income tax, Bombay vs Sir Mahomed Yusuf Ismail (3).
In this case Beaumont C. J. construed the word " definite information " in section 34 and held that in order to take action under the said section, there must be some information as to a fact which leads the Income tax Officer to discover that income (1) (2) , 28.
(3) [1944] 12 I.T.R. B. 26 has escaped assessment or has been under assessed.
The learned Chief Justice, however, added that the fact may be as to the state of the law, for instance, that a case has been overruled or that a statute has been passed which has not been brought to the attention of the Income tax Officer.
Chagla J. who delivered a concurring judgment was inclined, to hold that the word " information " in the section must be confined only to information as to facts or particulars and cannot include information as to law.
In his opinion, " a mistake of law or misunderstanding of the provisions of the law is not covered by the language of the section as amended in 1939 ".
It may be pointed out that in coming to this conclusion the learned judge appears to have relied on the observations of Rowlatt J. in Anderton and Halstead Ltd. vs Birrell (1) that "the word I discover ' in section 125 of the English Act does not include a mere change of opinion on the same facts and figures upon the same question of account ancy, being a question of opinion ".
Incidentally, we may observe that this statement of the law by Mr. Justice Rowlatt appears to have been overruled by the Court of Appeal in Commercial Structures Ltd. vs R. A. Briggs (2).
Soon after the decision of the Bombay High Court was reported the same question was raised before the Madras High Court in Raghavalu Naidu & Sons vs Commissioner of Income tax, Madras (3).
Leach C. J. who delivered the judgment of the court agreed with the construction which had been put on the expression "definite information " by the Bombay High Court on the ground that "it is very desirable to avoid conflict on such a question ".
He, however, added that in view of the opening words of the amended section as it was amended in 1939, the word " discovers " means something more than 'has reason to believe ' or ' satisfies himself ' and that consequently it would not be right to regard the English decisions on the meaning of the word " discovers " in section 125 of (1) [1932] I. K. B. 271.
(2) [1949] 117 I.T.R. Supplement 30.
(3) , 197.
4 26 the English Act as being in point.
He also made it clear that in following the Bombay, decision they did not imply that the definite information must relate to a pure question of fact because it was impossible to lay down a rule to cover all cases in which this section can be invoked.
In the Calcutta High Court, conflicting views have been expressed on this point.
In Maharaja Bikram Kishore of Tripura vs Province.
of Assam (1), Harries C. J. and Mukherjea J. had to deal with the construction of section 30 of the Assam Agricultural Income tax Act (Assam IX of 1939) which corresponds to section 34 of the Act.
They held that where a certain income has been included in his return by the assessee but was not assessed on the ground that it was not assessable, it cannot be treated as income which has escaped assessment and reassessed under section 30 of the Assam Agricultural Income tax Act.
In his judgment the learned Chief Justice has mentioned that the earlier decisions of the Calcutta High Court were no doubt against the contentions of the appellant but he took the view that the question was really concluded by the decision of the Privy Council in Rajendra Nath Mukherjee 's case (supra) (2).
The Privy Council decision was read by the learned Chief Justice as supporting the view that section 34 would be inapplicable to cases where income has been returned, assessment proceedings have been taken and a final order of assessment has been passed by the Income tax Officer against the assessee.
We have already pointed out that the decision of the Privy Council does not support this view.
In Raja Benoy Kumar Sahas Roy vs Commissioner of 1.
T., West Bengal(1), Chakravartti C. J. and Lahiri J. have taken a contrary view.
They have held that information as to the true state or meaning of the law derived freshly from an external source of authoritative character is definite information within the meaning of section 34.
It appears that, in construing the scope and effect of the provisions of section 34, the High Courts have had (1) (2) (1933) 61 1,A. 10, 16.
(3) 27 occasion to decide whether it would be open to the Income tax Officer to take action under section 34 on the ground that he thinks that his original decision in making the order of assessment was wrong without any fresh information from an external source or whether the successor of the Income tax Officer can act under section 34 on the ground that the order of assessment passed by his predecessor was erroneous, and divergent views have been expressed on this point.
Mr. Rajagopala Sastri, for the respondent, suggested that under the provisions of section 34 as amended in 1948, it would be open to the Income tax Officer to act under the said section even if he merely changed his mind without any information from an external source and came to the conclusion that, in a particular case, he had erroneously allowed an assessee 's income to escape assessment.
We do not propose to express any opinion on this point in the present appeal.
In the result we hold that the Patna High Court was right in coming to the conclusion that the decision of the Privy Council was information within the meaning of section 34 (1)(b) and that the said decision justified the belief of the Income tax Officer that part of the appellant 's income had escaped assessment for the relevant year.
The appeal accordingly fails and must be dismissed with costs.
Appeal dismissed.

summary/full:
In respect of the assessment of the appellant to income tax the Income tax Officer excluded the amount of interest on arrears of rent received by him, in view of the decision of the Patna High Court in Kamakshya Narain Singh vs Commissioner of Income tax, [1946] 14 , that this amount was not liable to be taxed, though an appeal against the said decision to the Privy Council at the instance of the Income tax Department was then pending.
Subsequently on July 6, 1948, the Privy Council allowed the appeal and held that interest on arrears of rent payable in respect of agricultural land was not agricultural income as it was neither rent nor revenue derived from land.
As a result of this decision the Income tax Officer took proceedings under section 34 Of the Indian Income tax Act, 1922, as amended, and revised the assessment order by adding the aforesaid amount, on the footing that the subsequent decision of the Privy Council was information within the meaning of section 34(1)(b) of the Act and that the Income tax Officer had reason to believe that a part Of the assessee 's income, had escaped assessment.
It was contended for the appellant that section 34(1)(b) was not applicable to the case because (1) the information referred to in the section means information as to facts and cannot include the decision of the Privy Council on a point of law, 11 and (2) where income has been duly returned for assessment and an assessment order has been passed by the Income tax Officer, it cannot be said that any income has escaped assessment within section 34(1)(b).
Held, (1) that the word " information " in section 34(1)(b) of the Act includes information as to the true and correct state of the law and so would cover information as to relevant judicial decisions; and, (2) that the expression "has escaped assessment" in to cases where no return has been submitted by the assessee.
The section is applicable not only where income has not been assessed owing to inadvertence or oversight or owing to the fact that no return has been submitted, but also where are turn has been submitted, but the Income tax Officer erroneously fails to tax a part of assessable income.
Rajendra Nath Mukherjee vs Income tax Commissioner, (1933) L.R. 61 I. A. 10 and Messrs. Chatturam Horliram Ltd. vs Commissioner of Income tax, Bihar and Orissa, [1955] 2S.C.R. 290, distinguished.
Raja Benoy Kumar Sahas Roy vs Commissioner of Income tax, West Bengal, , Madan Lal vs Commissioner of Income tax, Punjab, and The Commissioner of Income tax vs Raja of Parlakimedi, Mad. 22, approved.
, Maharaja Bikram Kishore of Tripura vs Province of Assam, , disapproved.


judgement:
nd circumstances of the instant case, admission to medical or dental Institution by conducting examination in Hindi or other regional languages would be appropriate or desirable or not, is a matter on which debate is possible and the acceptance of one view over the other involves a policy decision.
It cannot be appropri ately dealt with by this Court, and order under Article 32 of the Constitution in those circumstances would not be an appropriate remedy.
[592H, 593A] & CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 428 of 1989.
(Under Article 32 of the Constitution of India).
Dr. L.M. Singhvi, N. Wazir and D. Bhandari for the Petition ers.
Rajiv Dutta for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is an application under Article 32 of the Constitution of India for issue of a writ of mandamus 590 directing the Central Government to hold pre medical and pre dental entrance examinations in Hindi and other regional languages as, according to the petitioners, mandated by Article 29(2) of the Constitution of India.
The petition is by nine petitioners.
Petitioner No. 1 is Hindi Hitrakshak Samiti which is stated to be a society formed with the aim and object of propagating and ensuring the propagation of the national language Hindi and other regional languages; and to further the cause of the citizens of India who are educated in any one or more of the languages and who face difficulty in competitive examinations in which the medium of examination is English only.
Petitioners Nos.
3 to 10 are the students who allege that they wish to appear in the coming PMT/PDT examinations in Hindi or other regional languages and are being adversely affected and discriminated against, and will be in a disad vantageous position in the forthcoming PMT/PDT examination in comparison to those who have passed the higher secondary or equivalent examination with English as their medium of instruction.
The petition seeks issue of writ directed against the Union of India, Central Board of Secondary Education and Medical Council of India.
It is stated that in the year 1974 there was a survey by National Council for Educational Research & Training (NCERT) which, according to the petitioners, showed that out of the students passing intermediate, about 92.5% take their exami nation in Hindi and other regional languages.
The petition ers allege that Kothari Commission 's report on Civil Serv ices Examination had recommended that the examination papers be set both in English and Hindi and the examinees should have a choice of answering them in English, Hindi or any of the 15 regional languages Constitutionally recognised.
It was stated that it was also noteworthy that the Kothari Commission 's report had recommended that Hindi and other regional languages in Universities would be necessary in order to make use of the best potential available in the country.
In 1986 this Court in the case of Dr. Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., ; dealt with certain aspects of admission to the Medical College, but not on the present aspect.
Letters and representations to the Ministry of Health & Family Welfare, by the petitioners were made on 23rd September, 1988 requesting the Government to consider conducting the PMT/PTD examinations in Hindi and other regional languages.
It is stated that a letter was issued on both December, 1988 by the Government of India to the effect that the Joint Engineering Examination (JEE) for the five I.I.Ts.
and the 591 Engineering College of Banaras be conducted in Indian lan guages from 1990 onwards.
The petitioners assert that they had received numerous letters and grievances from students with Hindi medium background to press for this instant petition.
When the application was moved before this Court on 17th April, 1989 this Court had issued notice.
We have examined the matter and have heard Mr. L.M. Singhvi.
We are of the opinion that the prayers sought for herein are not such which can be appropriately, properly and legitimately dealt with under Article 32 of the Constitution of India.
The contention of the petitioners is, as mentioned hereinbefore, that pre medical studies in medical and dental examination should be permitted in Hindi and other regional languages and not in English alone, and the admission to the Institutions should not be refused and/or examinations should not be held in English alone if the examinees or the entrants seek to appear in Hindi or other regional language.
Article 32 of the Constitution of India guarantees enforcement of fundamental rights.
It is well settled that the jurisdiction conferred on the Supreme Court under Arti cle 32 is an important and integral part of the Indian Constitution but violation of a fundamental right is the sine qua non for seeking enforcement of those rights by the Supreme Court.
In order to establish the violation of a fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced.
Mr Singhvi, counsel for the petitioners, contends that under Article 29(2) of the Constitution no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
He contends that by not holding the test in Hindi or other regional languages, there is breach of Article 29(2).
He also draws our attention to Article 29(1) of the Constitution which enjoins that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of his own, shall have right to conserve the same.
It is difficult to accept that in not holding entrance examination in any particular language.
be it Hindi or regional language, amounts to denial of admis sion on the ground of language.
Every educational institu tion has right to determine or set out its method of educa tion and conditions of examination and studies provided these do not directly or indirectly have any casual connec tion with violation of the fundamental rights guaranteed by the 592 Constitution.
It may be that Hindi or other regional lan guages are more appropriate medium of imparting education to very many and it may be appropriate and proper to hold the examinations, entrance or otherwise, in any particular regional or Hindi language, or it may be that Hindi or other regional language because of development of that language, is not yet appropriate medium to transmute or test the knowledge or capacity that could be had in medical and dental disciplines.
It is a matter of formulation of policy by the State or educational authorities in charge of any particular situation.
Where the existence of a fundamental right has to be established by acceptance of a particular policy or a course of action for which there is no legal compulsion or statutory imperative, and on which there arc divergent views, the same cannot be sought to be enforced by Article 32 of the Constitution.
Article 32 of the Constitu tion cannot be a means to indicate policy preference.
It is difficult to contend that the actions following from nonacceptance of any policy perspective, amount to direct and causal violation of the fundamental right of the citizens guaranteed under the Constitution of India.
Court is not the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the Constitu tion.
It is well settled that judicial review, in order to enforce a fundamental right, is permissible of administra tive, legislative and governmental action or non action, and that the rights of the citizens of this country are to be judged by the judiciary and judicial forums and not by the administrators or executives.
But it is equally true that citizens of India are not to be governed by the Judges or judiciary.
If the governance is illegal or violative of rights and obligations, other questions may arise out wheth er, as mentioned hereinbefore, it has to be a policy deci sion by the Government or the authority and thereafter enforcement of that policy, the Court should not be, and we hope would not be an appropriate forum for decision.
In the background of the facts and the circumstances of the case and the nature of controversy that has arisen, we are of the opinion that proper and appropriate remedy in a situation where enforcement of the right depends upon the acceptance of a policy of examination for admission in any particular language to the Institution on that basis, is a matter of policy.
Whether in particular facts and the cir cumstances of this case admission to medical or dental Institution by conducting examination in Hindi or other regional languages would be appro 593 priate or desirable or not, is a matter on which debate is possible and the acceptance of one view over the other involves a policy decision.
It cannot be appropriately dealt with by this Court, and order under Article 32 of the Con stitution in those circumstances would not be an appropriate remedy.
Counsel for the petitioners drew our attention to the facts that notice had been issued to the respondent.
That is true.
On a closer examination of this matter we are of the opinion that in view of the controversy involved herein, we should not proceed with this application on that basis any further.
Counsel for the petitioners then wanted to withdraw this writ petition.
He is permitted to do so, and the writ peti tion is dismissed as withdrawn but this will not prejudice the rights, if any, of the petitioners, legal or otherwise, to take appropriate steps, if any, as they may be advised, in accordance with law.
N.P.V. Petition dismissed.

dataset_name: IN-Abs

summary/full:
A Writ Petition was filed in this Court praying for a direction to.the respondents to hold pre medical and pre dental examination in Hindi and other regional languages.
It was contended that pre medical studies in medical and dental examination should be permitted in Hindi and other regional languages and not in English alone, that admission should not be refused and/or examinations should not be held in English alone if the examinees or the entrants sought to appear in Hindi or other regional languages, and that by not holding the examinations in Hindi or other regional lan guages, there was a breach of Article 29(2).
Dismissing the writ petition as withdrawn, the Court, HELD: 1.1 The jurisdiction conferred on the Supreme Court under Article 32 is an important and integral part of the Indian Constitution but violation of a fundamental right is the sine qua non for seeking enforcement of those rights by the Supreme Court.
[591D E] 1.2 Not holding entrance examination in any particular language, be it Hindi or regional language cannot amount to denial of admission on the ground of language.
Every educa tional institution has right to determine or set out its method of education and conditions of examination and stud ies provided these do not directly or indirectly have any casual connection with violation of the fundamental rights guaranteed by the Constitution.
It may be that Hindi or other regional languages are more appropriate medium of imparting education to very many and 589 it may be appropriate and proper to hold the examinations, entrance or otherwise, in any particular regional or Hindi Language, or it may be that Hindi or other regional language because of development of the language, is not yet appropri ate medium to transmute or test the knowledge or capacity that could be had in medical and dental disciplines.
It is a matter of formulation of policy by the State or educational authorities in charge of any particular situation.
[591 E, G 1.3 Where the existence of a fundamental right has to be established by acceptance of a particular policy or a course of action for which there is no legal compulsion or statuto ry imperative, and on which there are divergent views, the same cannot be sought to be enforced by Article 32 of the Constitution.
Article 32 of the Constitution cannot be a means to indicate policy preference.
[592B C] 1.4 The actions following from non acceptance of any policy perspective cannot amount to direct and casual viola tion of the fundamental right of the citizens guaranteed under the Constitution of India.
Court is not the forum to adjudicate upon the questions of policy unless such a policy is the direct mandate of the COnstitution.
[592D]


judgement:
ivil Appeal No. 479 of 1986.
578 From the Judgment and Order dated 18.3.
1985 of the Assam High Court in Civil Rule No. 139 of 1979.
A.K. Ganguli, A. Mariarputham, A.D. Sikri and Dilip Tandon for the Appellant.
Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal Singh, C.V.S. Rao, Adv.
(NP) and R.B. Misra for the appearing respondents.
Hardev Singh and section Ravindra Bhat for the intervenor.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave calls in question the judgment of the Guwahati High Court dated March 18, 1985, dismissing the appellant 's writ petition.
The appellant is a resident of Tripura State.
In his application in a representative capacity before the High court he main tained that he belonged to the Laskar community which had always been treated in the erstwhile State of Tripura as a Scheduled Tribe and on that basis in the State records was included in the Deshi Tripura community long before integra tion of the Ruler 's State of Tripura with the Union of India.
Members of the Laskar community freely enjoyed all the benefits available to members of the Schedule Tribes until in 1976 the State Government decided to treat members of that community as not belonging to the Scheduled Tribes and issued instructions to the State authorities to imple ment the Government decision.
That led to the filing of the petition before the High Court.
In the writ petition appel lant prayed for appropriate directions to continue to treat the appellant and members of his community as belonging to the Scheduled Tribes and for a direction to the State Gov ernment to extend all the benefits admissible to members of the Scheduled Tribes to members of the Laskar community.
Before the High Court the respondents disputed the claim and maintained that the Laskar community was never included in the Scheduled Tribes Order and as such there was no question of exclusion from the list.
A historical study of the claim would show that in the past Tripura/Tripuri/Tippera which have been included in the Presidential Notification never included the Laskar community.
Tripuras were.
a TibetoDurman race akin to the Shan tribe and Tipperas were divided into four groups, namely, (i) Puran or original Tipperas; (ii) Jamatias; (iii) Noatias or Nutan Tripuras and (iv) Riangs.
Respondents relied upon Government records and official publications in support of the aforesaid stand.
579 Before the High Court two circulars of the erstwhile State of Tripura, one being of December, 1930, and the other of February, 1941, as also the census report of the ex State of Tripura were produced in support of the claim advanced by the appellant.
Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the High Court dismissed the writ petition but on the basis of a statement made by the Advocate General appearing for the State, it recorded: "We keep on record the statement made by the learned Advo cate General, Tripura, on instruction that as a result of the impugned Memorandum No. 18887 19077/TW/6 4(L D) dated 28.4.
1979 the certificates already issued would be treated as infructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such Scheduled Tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively insofar as the future benefits are concerned.
" This appeal had come up for final hearing earlier and by a brief judgment reported in , a two Judge Bench recorded the following order: "The record before us shows that the people of the Laskar community have been treated as members of the Scheduled Tribes and there have been some letters from the Government of India to the State Government in support of that posi tion; it is, however, a fact that there has been no clear inclusion of the community in an appropriate Presidential Order.
The appellant has maintained that even in the absence of such a clear specification in a Presidential Order, as a sub group under one of the notified categories, the appel lant 's community has been enjoying the privileges.
We have been told by the learned counsel for the Union of India that the representation made by the appellant and members of his community for inclusion in the Presidential Order under Article 342 of the Constitution is being looked into and is being placed before the Parliamentary Committee in accord ance with the prescribed procedure for a review of the position.
He has assured us that the Government of India will take steps to finalise the matter at an 580 early date and may in compliance with the procedure as prescribed, take a final decision.
In case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available in law.
" The appellant waited for some time and approached the Government of India for quick action but when nothing hap pened, an application for directions was made in this Court.
Several adjournments were taken but Government could not take any decision.
Ultimately, by consent of parties, the order disposing of the appeal was recalled and the appeal was directed to be set down for re hearing.
That is how the appeal is now before us.
Articles 341 and 342 of the Constitution deal with Scheduled Castes and Scheduled Tribes respectively and contain almost identical provision.
We may extract Article 342 dealing with Scheduled Tribes: "342.(1) The President may, with respect to any State or Union Territory and where it is a State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
(2) parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
" Article 366(25) defines 'Scheduled Tribes ' to mean such tribes or tribal communities or parts or groups within such tribal communities as are deemed under article 342 to be Sched uled Tribes for the purposes of this Constitution.
The Constitution (Scheduled Tribes) (Union Territories) Order, 1950 relating to Tripura included 19 tribes within the notification.
Items 15, 16, 17 and 18 are relevant for our purpose and they were: "15.
Tripura or Tripuri, Tippera.
581 16.
Jamatia 17.
Noatia 18.
Riang" Following the Reorganisation Act (37 of 1956), the Ministry of Home Affairs on October 29, 1956, notified the list of Scheduled Castes and Scheduled Tribes.
In respect of the then Union Territory of Tripura the same communities were relisted.
Then came the NorthEastern Area (Reorganisa tion) Act (81 of 1971) which in the Fourth Schedule con tained amendment to the Constitution (Scheduled Tribes) Order, 1950.
Items 15 to 18 in the Scheduled contained the same descriptions.
The Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, (108 of 1976) in relation to Tripura in the Second Scheduled carried the same in Entries 7, 14, 16 and 18.
It is, therefore, clear that in Tripura the scheduled tribes within the meaning of the definition given in article 366 of the Constitution have been the following: 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera ' apart from 15 other tribes as specified.
It is not necessary to refer to the 15 others inasmuch as it is the case of the appellant that Laskars are a part of the tribe named as Tripura, Tripuri or Tippera covered by Entry 18.
Before adverting to the evidence upon which the appel lant relies in support of his stand, it is necessary that the scope of enquiry to be conducted in this regard by the Court may be determined.
There are precedents of this Court which have to be first referred to.
A Constitution Bench in the case of B. Basavalingappa vs D. Munichinnappa, ; examined the provisions of article 341 which contained similar provisions for the scheduled castes with reference to an election dispute.
Wanchoo, J. spoke for the Constitu tion Bench thus: "Clause (1) provides that the President may with respect to any State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State.
The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under article 341 after consultation with the Governor where it relates to 582 such castes in a State.
Clause (2) then provides that Par liament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl.
(1) any caste, race or tribe or part of or group within any caste, race or tribe.
The power was thus given to Par liament to modify the notification made by the President under cl.
Further cl.
(2) goes on to provide that a notification issued under cl.
(1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl.
Clearly therefore article 341 provides for a notification and for its finality except when altered by Parliament by law . .
Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl.
(1) it is not open to any one to include any caste as coming within the notification on the basis of evidence Oral or documentary, if the caste in question does not find specific mention in the terms of the notification . .
It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and there fore must be deemed to be included in caste A.
It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in Order.
Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order.
" The factual dispute raised in the case before the Con stitution Bench was whether Voddar caste was included in Bhovi caste which was one of the notified castes.
The Con stitution Bench dealt with the evidence and ultimately said: "In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order.
We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out therefore which caste was meant by the word 'Bhovi ' as used in the Order.
But for this fact it would not have been open to any party to 583 give evidence to the effect that caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies.
" A similar dispute again came before a Constitution Bench in Bhaiyalal vs Harikishan Singh & Ors., ; with reference to a scheduled tribe in an election dispute.
Gajendragadkar, CJ speaking for the Court said: "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified.
Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examina tion of the social and educational backwardness of the race, caste or tribe justifies such specification.
In fact, it is well known that before a notification is issued under article 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State.
" What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intend ed to be final.
We may now refer to a two Judge Bench decision in the case of Parsram & Anr.
vs Shivchand & Ors.
, ; Here again, the Scheduled Castes Order was in issue in an election dispute and the question for consideration was whether mochi was included in the notified caste of chamar.
The Court referred to both the Constitution Bench judgments and indicated: "These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes 584 to which reference was made at the Bar to find out whether Mochi and Chamar in some parts of the State at least meant the same caste although their might be some difference in the professions followed by their members, the main differ ence being that Chamars skin dead animals which Mochis do not.
However that may be, the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the scheduled caste of Chamars and be allowed to contest an election on that basis.
" In Kishorilal Hans vs Raja Ram Singh & Ors., ; a two Judge Bench was called upon to decide whether jatav caste not mentioned in the scheduled castes of Datia district of Madhya Pradesh in the Order was included in chamar caste.
The Court indicated: "If the matter were res integra we would have felt a good deal of difficulty in reconciling with the constitutional provisions the scheme followed in the state and the Orders concerned by which some caste has been includes in some districts of the same State and excluded in the other dis tricts.
This Court, however, has in Bhaiyalal vs Harikishan Singh & Ors., supra, made observations repelling the conten tion that under article 341 of the Constitution the President was not authorised to limit the notification to parts of a State . .
In Bhaiyalal 's case the appellant 's election had been challenged on the ground that he belonged to the Dohar caste which was not recognised as a scheduled caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer.
It was held that the plea that though the appellant was not a Chamar as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is a sub caste of the Chamar caste could not be accepted.
An enquiry of that kind would not be permissible having regard to the provisions contained in article 341 of the Constitution.
" We may now refer to two separate judgments of this Court in the case Dina vs Narayan Singh, and Bhaiya Ram Munda vs 585 Anirudh Patar & Ors., ; Both were rendered by a common Bench of Shah (as he then was) and Bhargava, JJ.
In the first case the question for consideration was inter pretation of Entry 12 in the Scheduled Tribes Order.
The entry read. 'Gond including Mana '.
The Court interpreted that Mana community was a substitute of Gond and on a proper construction of the entry Manas not being Gonds were not intended to be included.
The decision in that case is not relevant for our purpose.
In Bhaiya Ram 's case, the tribe specified in the Sched uled Tribes Order was Munda.
The respondent was a Patar but he maintained that it was included in the notified tribe.
The Bench was of the view that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to mean though evidence could not be accepted for modifying the order by including a new tribe.
Since the respondents ' case was that Patars were Mundas, evidence could be given to show that the entry 'Munda ' included 'Patar '.
These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated.
It is, however, not open to the Court to make any addition or subtraction from the Presidential Order.
The evidence in this case on which reliance has been placed in support of the claim that Laskars are included in the tribe described as 'Tripura/Tripuri/Tippera ' mainly consists of two circulars of the erstwhile State of Tripura.
Circular No. 9 is of December, 1930.
There is a narration therein to the following effect: "In this State Tripura Sampradaya means the following five communities ' 1.
Puratan Tripura 2.
Deshi Tripura (related to Laskar Class) 3.
Noatia 4.
Jamatia 5.
Riang" 586 In Circular No. 10 which is of the year 1941, it has been said: "In this State Tripura Kshatriya denotes the following classes: 1.
Puratan Tripura 2.
Deshi Tripura (related to Laskar Class) 3.
Noatia 4.
Jamatia 5.
Riang" The latter document related to census operation in the State.
From these two documents it is clear that Deshi Tripura covered the Laskar class while there was another class called 'Tripura/Tripuri/ Tippera ' which did not relate to Laskar class.
The Presidential Order has admitted the three tribes of Noatia, Jamatia and Riang in terms but while dealing with the two classes of Puratan Tripura and Deshi Tripura covering the Laskar class, it has adopted the de scription of those three terms without referring to Puratan or Deshi.
The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential Order can only be by legislation.
We do not think we should assume jurisdic tion and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but we consider it appropriate to commend to the authorities con cerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained.
Reservation has become important in view of the increas ing competition in society and that probably had led to the anxiety of the appellant and the people in his community to claim reservation.
As pointed out by the Constitution Bench judgments which we have referred to above, the basis on which inclusion into or exclusion from the enumerated list made under article 342 is contemplated is the changing econom ic, educational and other situations of the members of any 587 particular tribe.
Keeping that in view the State Government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the author ities are satisfied that the claim is genuine and tenable, amendment may be undertaken as provided by the Constitution.
This Court has indicated in some of the judgments re ferred to above that as a result of the detailed enquiry made as to the economic status, the level of education and the necessity of protection, inclusion into or exclusion from the Order is made.
This material relating to the Laskar tribe in 1930 or 1941 may not have been considered suffi cient before the respective Orders were made for including the Laskars, said to have been covered by the description of Deshi Tripura.
Therefore, even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a scheduled tribe.
That is an additional feature which has weighed with us in taking our decision not to interfere in the matter.
The claim of the appellant is dismissed so far as this Court is concerned but the observations which we have made may be kept in view.
There shall be no order for costs through out.
Y. Lal Appeal dismissed.

summary/full:
The appellant is a resident of Tripura State.
He assert ed that he belonged to the Laskar community which was in cluded in State records in the Deshi Tripura community and in the former State of Tripura this community had always been treated as Scheduled Tribes, and the members of the community freely enjoyed all the benefits available to members of the Scheduled Tribes until 1976 when the State Government decided to treat members of this community as not belonging to the Scheduled Tribes and issued instructions to the state authorities to implement the Government decision.
Being aggrieved the appellant filed a writ petition before the High Court in a representative capacity praying for appropriate directions directing the State Government to continue to treat the appellant and members of Laskar commu nity as belonging to Scheduled Tribes and extend all the benefits available to Scheduled Tribes to this community.
In support of his claim the appellant relied upon the two circulars of the erstwhile State of Tripura dated December 1930 and February 1941 as also the census report of the ex state of Tripura, besides the authorities of this Court.
The respondent took the plea that Laskar community was never included in the Scheduled Tribes Order and as such there was no question of excluding it from the List.
After considering the rival contentions of the parties coupled with the his torical background bearing on the subject, the statement made by the Advocate General that the Memos will be given prospective operation, the High Court dismissed the Writ Petition.
Hence this appeal by Special Leave.
This appeal initially came up before a two judges Bench for final hear ing when on a statement made by the Counsel for the Union of India that a representation made by the appellant and mem bers of his community for inclusion their caste Laskar, in the Presidential order under Article 342 is being looked into and is being placed before the Parliamentary Committee for review of the position, the Court disposed of the appeal in terms of the assurance 577 given on behalf of the Union.
It was specifically stated in the Court 's order that in case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available to him in law.
Nothing having happened at governmental level, with the consent of the parties, the order disposing of the appeal was recalled and the appeal has thus now come up for hear ing.
Dismissing the appeal, this Court, HELD: Reservation has become important in view of the increasing competition in society and that probably had led to the anxiety of the appellant and the people in his commu nity to claim reservation.
[586G] In Tripura the Scheduled Tribes within the meaning of the definition given in Article 366 of the Constitution have been 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera ' apart from 15 other tribes.
It is the case of the appellant that Laskars are a part of the tribe named as 'Tripura, Tripuri and Tippera ' covered by Entry 18.
[581D] This Court should not assume jurisdiction and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but it is appropriate to commend to the authorities concerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained.
[586F G] Even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a Scheduled Tribe.
That is an additional feature which has weighed with us in taking our decision not to interfere in the matter.
[587C] B. Basavalingappa vs D. Munichinnappa, ; Bhaiyalal vs Harikishan Singh and Ors., ; ; Parsram and Anr.
vs Shivchand and Ors.
, ; ; Kishorilal Hans vs Raja Ram Singh and Ors., ; ; Dina vs Narayan Singh, and Bhaiya Ram Munda vs Anirudh Patarand Ors., ; , referred to.