judgement:
Appeal Nos.
245 251/72.
From the Judgment and Order dated 21 9 1970 of the Assam and Nagaland High Court in Civil Rules Nos. 105, 106 and 123 to 127/ 66.
A.K. Sen, D.N. Mukherjee and N.R. Choudhary for the Appellant.
Purshottam Chatterjee and S.N. Choudhary for the respond ents.
The Judgment of the Court was delivered by KHANNA, J.
The short question which arises for consid eration in these seven appeals filed on certificate against the judgment of Assam and Nagaland High Court is the scope and validity of the following part of rule 23 of the Assam Agricultural Income tax Rules, 1939 (hereinafter referred to as the rules) framed under section 50 of the Assam Agricul tural Income tax Act (Assam Act 9 of 1939) (hereinafter referred to as the Act): "Where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.
" The High Court held that the facts of this case were covered by the above quoted rule.
The High Court also repelled the challenge to the vires o{ the rule.
The appeals arise out of seven petitions filed under articles 226 and 227 of the Constitution of India by the appellant which were dismissed by a common judgment.
The matter relates to assessment years 1946 47, 1947 48, 1948 49, 1949 50, 1950 51, 1951 52 and 1955 56.
Each writ peti tion related to one of these years.
We may set out the facts relating to the assessment year 1946 47 as it is the common case of the parties that the decision about the writ petition relating to that year would govern the other writ petitions also.
The appellant Sashi Prasad Barooah was the Karta of a Hindu undivided family styled as S.P. Barooah & Others.
The family was governed by Dayabhaga school of Hindu law and consisted of three members.
The family owned certain tea estates and carried on the business of tea plantation.
It was assessed under the Act in respect of its income derived from manufacture and sale of tea.
The case of the appellant is that there was a partition of the family on January 1, 1945 and as a result of that partition, some of the tea estates fell to the share of the appellant and he became exclusive owner thereof from the date of the partition.
A general notice dated April 3, 1946 was published in the Assam Gazette and local newspapers in terms o,f sub section (1) of section 19 of the Act calling upon persons whose agricultural income exceeded 647 the limits of taxable income to furnish returns within the specified time.
On March 24, 1947 the appellant addressed a letter to the Agricultural Income tax Officer praying for extension of ' time for submission of the return.
Another letter dated May 10, 1947 was addressed by the appellant to the Agricultural Income tax Officer stating that he was trying to expedite the submission of the return.
On February 15, 1951 the Agricultural Income tax Officer addressed a communication to the appellant asking him to file the return by March 14, 1951.
The appellant by letter dated March 16, 1951 informed the said officer that he would meet him at Shillong.
In his letter dated July 21, 1951 the appellant informed the Agricultural Income tax Officer that he would file his return as soon as some matters were settled.
On March 25, 1955 the appellant addressed another letter to the Agricultural Income tax Officer stat ing that he had not received the relevant assessment orders made by the Income tax Officer (the income tax officer under the Indian Income tax Act, 1922) relating to the assessment years 1946 47 onwards.
On July 1959 the following two notices were sent by the Agricultural Income tax Officer to the appellant: "I am to inform you that following the dissolution of family business of Sashi Prasad Barua and Others in the year 1945, you are liable to furnish a Return of agricultur al incomes including those from the Tea Es tates under your ownership from the assessment year 1946 47.
Please also note that the Returns along with certified copies of Central Income tax Assessment should reach this office on or before 15 8 59.
In default, you will be liable for summary assessment." "Whereas I have reason to believe that your total agricultural income from sources chargeable to agricultural income tax in the year ending the 31st March, 1947 to 1959 (a) has wholly escaped assessment; (b) I therefore propose (i) to assess the said income that has escaped assessment.
I hereupon require you to deliver to me not later than 15 8 59 or within 30 days of the receipt of this notice, a Return in the attached form of your total agricultural income during the previous year ending the 31st March, 1946 to 1958.
" Accompanying the two notices sent by the Agricultural Income tax Officer was also a notice under section 19(2) and section 30 of the Act.
The appellant failed to submit a return or to furnish certified copies of the Central assess ment orders.
The Agricultural Income tax Officer as per order dated June 22, 1961 assessed the total agricultural income of the appellant for the year 1946 47 to be 648 Rs. 1,45,994.
An amount of Rs. 19,321.44 was held to be recoverable from the appellant.
The appellant filed an appeal against that order but the same was dismissed by the Assistant Commissioner of Taxes on December 27, 1962.
Revision filed by the appellant was dismissed by the Commis sioner of Taxes as per order dated September 28, 1964.
Certificate of public demand showing an amount of Rs. 3,74,087,89 as due from the appellant for the seven years in question was then issued by the Agricultural Income tax Officer.
Proclamation for the sale of the property of the appellant was thereafter issued for the recovery of the amount due from the appellant.
The appellant thereupon filed, as mentioned earlier, seven writ petitions.
Prayer made in the writ petitions was to quash the impugned assess ment orders dated June 22, 1961, the notices of demand dated July 4, 1961 and the proclamation of sale dated December 31, 1964.
Form one of the notices ,addressed by the taxation authorities to the appellant as well as from the return filed on their behalf, it would appear that the taxation authorities were not averse in the event of partition among the members of the Hindu undivided family, to assess the appellant in his individual capacity in respect of the agricultural income arising from those tea estates which had fallen to his share.
Such a course, it seems, was also not acceptable to the appellant.
His stand at the same time was that no assessment could be made in the name of Hindu undivided family as according to him the same had been disrupted as a result of partition.
The appellant thus wanted a complete imunity from payment of agricultural income tax during the years in question even though agricul tural income had arisen from tea estates.
Although a number of grounds were taken in the writ petitions, at the hearing before the High Court only two grounds were pressed on behalf of the appellant.
The first ground was that after the dissolution of the Hindu undivided family, no assessment order could be made under the Act in respect of such disrupted Hindu undivided family.
The second submission advanced on behalf of the appellant was that in case it be held that the matter was covered by rule 23 reproduced above, in that event the said rule was ultra vires the powers of the State Government to frame rules under the Act.
The High Court, as already mentioned, decided on both the points in favour of the revenue and against the appellant.
In appeal before us Mr. Sen on behalf of the appellant has contended that the Hindu undivided family of which the appellant was the Karta was disrupted on January 1, 1945.
It is urged, as was done before the High Court, that after the disruption of that family, it could not be assessed under the Act.
Rule 23 reproduced above, according to the learned counsel, is not attracted in the present case.
In case, however, it be held that the said rule applies to the present case, the State Government, Mr. Sen submits, had no power to make such a rule.
The above contentions have been controverted by Mr. Chatterjee on behalf of the respondents.
The learned coun sel has also emphasised the fact that in none of the commu nications sent by the appellant 649 mentioned above, there was any reference to partition of the Hindu undivided family.
After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well founded.
It is conse quently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income tax Officer.
It may be apposite at this stage to refer to the materi al provisions, as they stood at the relevant time, of the Act which provides for the imposition of tax on agricultural income arising from lands situated in Assam.
According to the definition of "person" as given in section 2(m) of the Act, person includes an undivided or joint Hindu family.
Section 3 is the charging section.
According to this sec tion, agricultural income tax at the rate or rates specified in the annual Assam Finance Acts subject to the provisions of section 6 shall be charged for each financial year in accordance with, and subject to, the provisions of this Act on the total agricultural income of the previous year of every individual, Hindu undivided or joint family, company, firm and other association of individuals.
Section 19 of the Act deals with the return of income and reads as under: "19.
(1) The Agricultural Income tax Officer shall, on or before the first day of May or for the year commencing 1st April, 1939 any later day notified by the Government in each year, give notice by publication in the press and otherwise in the manner prescribed by rules, requiring every person whose agri cultural income exceeds the limit of taxable income prescribed in section 6 to furnish, within such period not being less than thirty days as may be specified in the notice, a return, in the prescribed form and verified in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total agricultural income during the previous year: Provided that the Agricultural Income tax Officer may in his discretion extend the date for the delivery of the return in the case of any person or class of persons; (2) In the case of any person whose total agricultural income is, in the opinion of the Agricultural Income tax Officer, of such amount as to render such person liable to payment of agricultural income tax for any financial year the Agricultural Income tax Officer may serve in that financial year a notice in the prescribed form upon him requir ing him to furnish, within the prescribed period, a return in the prescribed manner setting forth his total agricultural income during the previous year.
(3) If any person has not furnished a return within the time allowed by or under sub section (1 ), or sub section 650 (2) or, having furnished a return under either of those subsections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be, at any time before the assessment is made, and any return so made shall be deemed to be made in due time under this section.
" Section 20 provides for the making of an assessment order.
Section 30 deals with income escaping assessment, and its material part reads as under: "If for any reason any agricultural income chargeable to agricultural income tax has escaped assessment for any financial year, or has been assessed at too low a rate, the Agricultural Income tax Officer may, at any time within three years of the end of that financial year, serve on the person liable to pay agricultural income tax on such agricul tural income or, in the case of a company on the prin cipal officer thereof, a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 19, and may proceed to assess or reassess such income, and the provi sions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section :" Section 5C) empowers the State Government to make rules.
The material part of that sec tion reads as under ': "50.
(1) The Provincial Government may, subject to previous publication, make rules for carrying out the purposes of this Act, and such rules may be made for the whole of the Province or such part or parts thereof as may be specified.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may (a) . (b) . (c) . (d) . (e) . (f) . (g) . (h) . (i) . (j) prescribe the manner in which the tax shall be payable where the assessment is made on the agricultural income of a Hindu undivided or joint family and a partition of the.
property of such 651 family has been effected after the date of such assessment; (k) . (l) . (m) .
We have set out above the relevant part of rule 23.
The rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family.
It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition iS passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be deemed for the purpose of the Act to continue to be a Hindu undivided family.
Admittedly no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the Karta.
As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family.
We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order.
Such cases, in our view, are covered by other part of rule 23.
We are, however, not concerned with that part.
So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous.
The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of parti tion in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act to continue to be a Hindu undi vided family.
As regards the second contention, Mr. Sen submits that the power which has been conferred by clause (i) of sub section (2) of section 50 of the Act is to make rules pre scribing the manner in which the tax shall be payable when the assessment is made on agricultural income of a Hindu undivided or joint family and a partition of the property of such family has been effected after the date of such assessment.
It is urged that apart from that, the State Government has no power to make a rule for assessment of a Hindu undivided family after a partition takes place in such family.
This contention is devoid of force as we are of the opinion that the State Government was competent to make the part of rule 23 reproduced above in exercise of the powers conferred by sub section (1) of section 50.
According to that sub section, the State Government may subject to previ ous publication make rules for carrying out the purposes of this Act.
It has not been disputed before uS that there was previous publication of the rules in question.
The question is whether the 652 part of rule 23 reproduced above can be said to have been made for carrying out the purposes of the Act.
The answer to this question, in our opinion, should be in the affirma tive.
What the rule contemplates is that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the pur poses of the Act to continue to be Hindu undivided family.
The rule thus relates to the working of the Act.
Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other associa tion of persons.
Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which Hindu undivided family was assessed hitherto.
The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family.
This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub section (1) of section 50 of the Act.
There is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities.
section (1) of section 171 of the Income tax Act 1961 provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family.
The fact that, unlike the Income tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material differ ence.
The rules would be as much binding as would be the statutory provision in this respect.
The only requirement is that the rules should be validly made.
in exercise of the powers conferred by the Act.
So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule.
The proposition is well settled that it is not unconsti tutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be levied the rates at which it is to be charged in respect of different classes of goods and the like [see Pt.
Banarsi Das vs State of Madhya Pradesh(1)].
In that case this Court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947.
The said Act provided for exemption from taxation in res (1) 653 pect of the supply of certain material.
Power was also conferred upon the State Government to amend such exemption by notification.
This Court upheld the validity of that notification.
We may also refer to the case of Powell vs Appollo Candle Company Limited(1) which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales.
That section conferred a power on the Governor to impose.
tax on certain articles of import.
While repelling the challenge to the constitutional validity of that provision, the Privy Council observed: "It is argued that the tax in question has been imposed by the Governor and not by the Legislature who alone had power to impose it.
But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued.
the Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.
In these circumstances, their Lord ships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of ]879 to be beyond the power of the Legislature.
" In Syed Mohamed & Co. vs The State of Madras(2), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.
Section 5(vi) of that Act had left it to the rulemaking authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins.
The validity of the rules was attacked on the ground that it was only the legislature that was competent to decide who 'shall be taxed and that the determination of that question by the rule making authorities was altra vires.
The Madras High Court rejected this contention, and held on a review of the authorities that the delegation of authority under section 5(vi) was within permissible consti tutional Limits.
Powell 's case as well as the case of Syed Mohamed were referred to with approval by this Court in the case of Pt.
Banarsi Das.
The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its compe tence to make rule 23 reproduced above.
We, therefore, uphold the judgment of the High Court and dismiss the appeals with costs.
One set of fee P.B.R. Appeals dismissed.
(1) (2) 3 S.T.C. 367.

summary/full:
Rule 23 of the Assam Agricultural Income tax Rules, 1939 provides that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu undivided family hitherto.
assessed as undivided or joint, such family shall be deemed, to continue to be a Hindu undivided or joint family.
The assessee was the Karta of a Hindu undivided family, which was assessed to agricultural income tax in respect of income derived from the manufacture and sale of tea.
The assessee contended before the Agricultural Income tax Officer that, since there was disruption of the Hindu undi vided family, no agricultural income tax was payable exen though agricultural income had arisen from tea estates.
This plea was rejected.
His petition under article 226 of the Constitution impugning the validity of r. 23 had been dis missed by the High Court.
In appeal to this Court it was contended that (i) after the dissolution of the family no assessment order could be made under r. 23 in respect of such disrupted Hindu Undi vided family (ii) the State Government had no power to make a rule for the assessment of a Hindu undivided family after a partition took place in the family.
Dismissing the appeals, HELD: (1) The language of r. 23 clearly warrants the conclusion that in the absence of an order apportioning the liability to tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall ,be deemed, for the purpose of the Act to continue to be a Hindu Undivided family.
No order apportioning the liability to, tax on ' the basis of the alleged partition having been passed, the family shall continue be treated as a Hindu undivided family.
[651 C F] 2(a) The liability for tax having been created by the charging section, the rule deals with the question as to who should be the person that should be assessed to tax.
This is a matter of detail to carry out the purposes of the and the State Government was well within its competence to make the rule in exercise of its rule making power.
[652 C D] (b) The fact that.
unlike the Income tax Act, there is no statutory provision in the Act and the matter is dealt with by the rules, would not make any material difference.
The rules would be as much binding as would be statutory provision in t,his respect.
[652 E F] (c) It is well settled that it is not unconstitutional for the legislature to leave it to the executive to deter mine the details relating to the working of taxation laws.
such as selection of persons on whom the tax is to be levied.
the rate at which it is to be charged in respect of different classes of goods and the like.
[652 G H] Pt.
Banarsi Das vs State of Madhya Pradesh [1959] S.C.R. 427, followed.
Powell vs Appollo Candle Company Limited [1885] 10 A.C. 282 and Syed Mobgreed & Co. vs The State of Madras 3 S.T.C. 367, referred to. 646


judgement:
Civil Appeal No. 1763 of 1968.
(From the Judgment and Decree dated the 28th July, 1964 of the Kerala High Court in Appeal Suit No. 843 of 1960).
T.C. Raghavan, Sardar Bahadur Saharya and V.B. Saharya, for the appellant.
T.S. Krishnamoorthy Iyer and M.R. Pillai,.
for Respondent No. 1.
T.S. Krishnamoorthy, P.K. Pillai and N. Sudhakaran, for Respondent No. 2.
638 The Judgment of the Court was delivered by BEG, J.
This is a defendent 's appeal by Certificate granted by the Kerala High Court under Article 133(1)(a) of the Constitution as a matter of course before its amendment because the High Court had modified a decree in a partition suit and the subject matter satisfied the requirements of the unamended Article 133.
The parties to the partition suit are descendants of Narayana Prabhu (hereinafter referred to as 'Narayana ').
Krishna, the plaintiff (now dead) was the 3rd son of Nara yana.
The defendant appellant, Venkateswara, was the eldest of the four sons of Narayana.
The partition suit related to 72 items mentioned in schedule 'A ' to the plaint claimed by the plaintiff to be joint family property.
It appears that there was no dispute with regard to certain items, but, the defendant appellant claimed other items as his exclusive property on the ground that they had been purchased from his personal income.
due to his own enter prise and exertions and ability in carrying on business.
The Trial Court had accepted the case of the defendant appellant that all items, except No. 35 and a part of item No. 52 which belonged, to the 3rd defendant, were the self acquired properties of the defendant appellant.
The High Court re versed this finding on the ground that there was "little reliable: evidence on record as to.
the exact source of the. fund with which the first defendant started the trade".
The High Court rejected the submission of the defendant appel lant that, when the Tobacco business under consideration was started, Narayana being the Karta of the family, the fact that the eldest son, Venkateswara, the defendant appel lant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venka teswara.
The High Court relying on certain documentary evidence, including the letter heads showing the business as that of "P. N. Venkateswara Prabhu & Brothers" held that the business was joint family business.
The partition suit was filed originally in another Court but was sent to the Court of the Second Additional Sub Judge of Alleppey in 1957, and the preliminary decree was passed on 5th August, 1960.
The High Court allowed the appeal, modifying the decree to the extent that 3/4th share of items 4 to 72 of the schedule, except item 35 and part of 52 standing in the name of the 3rd defendant, were held to, be partible properties as part of Joint family business, but it excluded assets which came into.
existence after the filing of the. partition suit which operated as a clear unequivocal expression of intention to separate.
It also, left the extent of mesne profits of landed properties to be decided in proceedings for the passing of the final decree.
It appeals that the defendant appellant had also filed a money suit in the Court of the Munsif only against defendant No. 3, one of the four brother 's, but all of them were impleaded in the partition suit.
The money suit was, howev er, transferred to the file of the Additional Sub Judge and tried together with the partition suit and was also de creed by the Additional Sub Judge of Alleppey on the same date as the partition suit.
The plaintiff respondent had appealed against both the decrees in the High Court.
The two appeals were heard and decided together by the High Court.
The High Court, after pro 639 nouncing judgment in the partition suit, proceeded to give judgment, under a new heading and number of the appeal in the money suit.
It said, in this separate judgment: "The suit that gave rise to.
this appeal has been instituted by the respondent against the appellant for money due on 14 10 1123 on account of tobacco delivered to the latter 's shop.
The defence was that the trades run by both the brothers were parts of the joint family trade, and not separate to foster such a claim by the respondent on the appellant.
The court below, having found in the other suit the shops run by the parties to belong to the concerned individuals, has decreed the suit.
As we have reversed that finding in A.S. No. 843 of 1960 and found the shop stand ing in the name of each brother to be a branch of the joint family trade.
in tobacco and directed ascertainment of the assets and liabilities of the entire trade to be settled as on 2 3 1124, the date of that partition suit, this suit has to be dismissed".
The judgments were, therefore, two.
separate ones given in one continuation but under ' separate headings.
Separate decrees were prepared in each appeal relating to a separate case.
As the defendant appellant did not seek leave to file any appeal against the High Court 's judgment and decree in the money suit and there is no appeal before us against the decree in the money suit, a preliminary objection is taken on the ground that the defendant 's appeal now before us is barred by res judicata.
Learned Counsel for the defendant appellant urges that the two suits were different in nature and were filed in different Courts originally so that the Court trying the partition suit and the Court in which the money suit was triable were not Courts of coordinate jurisdiction.
It was also.
objected that the partition suit was earlier and the money suit having been filed sixteen days later could not be deemed to be a suit decided earlier.
Furthermore, it was pointed out that the judgment was common.
It was also urged that.
all the four brothers were parties to the parti tion suit but the money suit was only between two brothers.
It is true that the appeals against both the decrees of the Trial Court were heard together in the High Court, and, although, the appeal in the money suit is decided under a separate.
heading and the short judgment in it appears to be practically consequential on the judgment in the partition suit, yet, the judgments in the two appeals decide a common issue and resulted in two decrees.
It is urged that, whereas the defendant appellant had.
filed an appeal on the strength of a certificate granted to him as a matter of right, following upon the modification of the decree of the Trial Court by the High Court, the defend ant appellant had no such right of appeal in this Court.
Hence, it was submitted that neither in law nor in equity could the.
defendant appellant be.
barred from putting forward his objections to the decree in the partition suit.
640 Certain decisions were relied upon by learned Counsel for, the defendant appellant Venkateswara in support of the contention that the plea of res Judicata is not available as a preliminary objection to the respondent to the hearing of the appeal before us in the circumstances of this case.
We proceed to consider these cases.
Narhari & Ors.
vs Shankar & Ors.
,(1) is no doubt the judgment of the Supreme Court of India, although it was, if one may so put it, "the Hyderabad Wing" of it in a transi tional period when a learned Judge of this Court, Mr. Jus tice Mehr Chand Mahajan, presided over a bench of which the other two Members were formerly Members of His Exalted Highness the Nizam 's Judicial Committee.
Technically, however, it was this Court 's judgment.
In that case, Naik, J. had followed a decision of the Judicial Committee of the Hyderabad State and held that, when there was only one suit and the appeals had been disposed of by the same judgment, it was not necessary to file two separate appeals.
It elaborated the ratio of the decision as follows (at p. 757 758): "It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.
As has been observed by Tek Chand J. in his learned judgment in Mst.
Lachmi vs Mst.
Bhuli (AIR mentioned above, the determining factor is not the decree but the matter in controversy.
As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment.
The question of resjudicata arises only when there are two suits.
Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit.
When there is only one suit, the question of res Judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.
As such, there is no question of the application of the principle of res judicata.
The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal.
The two decrees in substance are one".
It seems to us that to be fair to confine the ratio deci dendi of the Hyderabad case to cases where there is only one suit.
In the case now before us, not only were the decrees different but the suits were different.
The mere fact that the judgments in the two suits were given togeth er or in continuation did not matter.
In fact, even in form.
the judgment in the appeal relating to the money suit was separate from the rest of the judgment.
And, in any case, there were two separate decrees.
(1) ; 641 We think that Section 11 Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled.
The principle embodied in the statute is not so much the principle of "estoppel by record", which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence: firstly, interest reipublicoe ut sit finis litium it concerns the State that there be an end to law suits; and, secondly, "nemo debet bis vexari pro una et eadem cause" no man should be vexed twice over for the same cause.
Sir Lawrence Jenkings pointed out, in Sheoparsan Singh vs Ramnandan Prasad Singh(1), that the rule of res judicata "while rounded on ancient precedent, is dictated by a wisdom which is for all time".
Litigation which has no end or finality defeats its very object.
This object is decision of disputes or an end to each litigation.
But, if there is no finality to it, the dispute cannot be said to be really decided at all.
It is the duty of the State to see that disputes brought before its judicial organs by citizens are decided finally as early as possible.
Hence, Section 11 of our Civil Procedure Code contains in statutory form, with illuminating explanations, a very salutary principle of public policy.
An "estoppel", even if it be "by record", rests on somewhat different grounds.
Even such an estoppel savours of an equity or justice created by actions of par ties the results of which have become recorded formally behind which they are not allowed to go.
Reliance was also placed on Govind Bin Lakshmanshet Anjorlekar vs Dhondba 'Ra 'V Bin Ganba ' Ra 'F 'Ta 'Mbye(2), on behalf of the appellant.
Here, it was held that decisions in previous suits of the nature of small cause suits in which there was no right of second appeal could not oper ate as res judicata in suits before Courts in which ques tions were elaborately litigated and decided in cases which could go to the High Court in second appeal.
We were also referred to a Full Bench decision of the Madras High Court in Avanasi Gounden & Ors.
vs Nachamal(3), where it was similarly held that: "A decision in a previous suit of a small cause nature, in which no second appeal is allowed by law, is no bar to a subsequent suit, in the same Court, which, not being of a small cause nature, is open to second appeal".
We have to remember that Small Cause juris diction is a limited one exercisable only in specified matters.
Decisions given beyond Jurisdiction to try an issue cannot operate as res ]udicata.
Our attention was drawn to explanation II of section 11, on behalf of the respondents.
It reads: "Explanation II.
For the purposes of this Section, the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court".
(1) A.I.R. 1961 P.C. 78=43 I.A. 91.
(2) I.L.R. Vol.
XV Bombay 104.
(3) I.L.R. 29 Madras 195.
642 It seems to us that section 11 itself refers to.
a Court which actually tries the, two suits.
We think that, in the circumstances of the case before us, the incompetence of the Court, in which the money suit was initially filed, to try the partition suit did not matter when the actual hearing of both the cases took place in the same Court.
That Court was, obviously, competent to try both the suits.
After the money suit had been transferred from the Court of the Munsif, the Second Additional Sub Judge actually tried and decided both of them.
This was enough to make the differ ence in the jurisdictions of the Courts, in which the suits were initially filed, quite immaterial.
Similarly, the High Court was competent to hear appeals from judgments in both.
It heard and decided the two appeals together.
So far as the question of appeal to this Court is con cerned, it is true that no appeal lay as a matter of right against the judgment in the appeal in the money suit, but, we think that the learned counsel for the respondents is correct in submitting that the question Whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions but on the question whether the same issue, under the circumstances given in section 11, has been heard and finally decided.
That was certainly purported to be done by the High Court in both the appeals before it subject, of course, to the rights of parties to appeal.
The mere fact that the defendant appellant could come up to this Court in appeal as of right by means of a certificate of fitness of the case under the unamended Article 133(1)(c) in the parti tion suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt of any sort was made to question the correctness or finality of that decision even by means of an application for Special Leave to appeal.
Learned counsel for the respondents appears to us to have rightly relied upon Bhugwanbutti Chowdhrani vs A.H. Forbes(1), where it was held that "in order to make a matter res judicata it is not necessary that the two suits must be open to appeal in the same way".
He also relied on Lonan kutty vs Thomman & Anr.(2), a recent decision of three Judges of this Court, where Chandrachud, J., observed (at p. 1650): "Respondents did not file any further appeal against the decree passed by the Dis trict Court in the appeals arising out of their suit.
They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial ' Court in the appellant 's suit.
Thus, the decision of the District Court rendered in the appeal arising out of the respondent 's suit became final and conclusive".
It was also observed there: "The decision of the District Court was given in an appeal arising out of a suit which, though instituted subse (1) I.L.R. (2) ; Supp.
S.C.R. 74.
643 quently, stood finally decided before the High Court disposed of the second appeal.
The decision was, therefore, one in a 'former suit ' within the meaning of section 11, Explanation I, Civil Procedure Code".
The expression "former suit" according to explanation I of section 11, Civil Procedure Code, makes it clear that, if a decision is given before the institution of the pro ceeding which is sought to be barred by res judicata, and that decision is allowed to become final by operation of law, a bar of res judicata would emerge.
This as learned counsel for the respondents rightly submits, follows from the decision of this Court in Lonankutty 's case (supra).
The only other point which we need consider is whether the fact that the money suit was only between the defendant appellant and one of his brothers, who was also a respondent in the partition suit, makes any difference to the applicability of the principle of res judicata in this case.
Learned Counsel for the appellant submits that the defendant appellant could not come within the ambit of Explanation VI of section 11, Civil Procedure Code which provides as follows: "Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigat ing".
On the other hand, learned counsel for the respondent sub mits that the case of the respondents fully covered by this explanation and relies on Kumaravelu Chettiar & Ors.
T.P. Ramaswamy Ayyar & Ors.
C) where it was held: "Explanation 6 is not confined to cases covered by O. 1, R. 8 but extends to include any litigation in which apart from the Rule altogether, parties are entitled to represent interested persons other than themselves".
We think that the submission made by the learned counsel for the respondents is sound.
In a partition suit each party claiming that the property is joint, asserts a right and litigates under a title which is common to others who make identical claims.
If that very issue is litigated in another suit and decided we do not see why the others making the same claim cannot be held to be claiming a right "in common for themselves and others".
Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical.
If we were to hold otherwise, it would neces sarily mean that there would be two inconsistent decrees.
One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied.
We think this will be the case here.
(1) A.I.R. 1933 P.C. 183.
7 112SCI/77 644 We need not deal with other cases of this Court cited, including Sheodan Singh vs Smt.
Daryao Kunwar(1), which supports the respondents ' submissions, and Raj Lakshmi Bai & Ors.
vs Banamali Sen & Ors.( ), which is not directly ap plicable inasmuch as that was a case in which the general principles of res judicata, and not section 11 Civil Proce dure Code, were applied.
The preliminary objection in the case before us is fully supported, for the reasons given above, by section 11, Civil Procedure Code read in the light of the Explanation mentioned above.
Consequently, the preliminary objection must prevail.
Learned counsel for the appellant, conscious of the difficulties in his way, filed after the hearing of the appeal was begun before us, an application for condonation of delay in applying for leave to appeal against the judg ment of the High Court in the money suit.
He submits that, in view of the uncertain position in law, we should try to extend equities as much as possible in his client 's favour.
On the other hand, learned counsel for the respond ents points out that the objection based on the bar of res judicata was taken as long ago as 1968 by the respondents.
It seems to us that the delay in waking up to the existence of the bar on the part of the appellant is much too long to be condoned.
Moreover, we also find that the judgment of the High Court, based on the admissions of the appellant, does not disclose any error of law so as to deserve grant of special leave to appeal.
Indeed, in so far as we could express any opinion at all upon the merits of the judgment of the High Court, based as it is upon documents containing admissions of the defendant appellant, it seems to us that the appellant would have a very uphill task indeed in argu ing his appeal even in the partition suit.
We may mention here that the partition suit was instituted as long ago as 1947 and was only given a new number in 1957.
If there is a case in which the principle that litigation should have an end ought to be applied, it is this on the face of facts of the case apparent to us.
We, therefore, reject the Civil Miscellaneous Petition No. 8585 of 1976, the application for condonation of delay in the filing the Special Leave Peti tion.
We dismiss the Civil Miscellaneous Petition No. 8586 of 1976 as well as the over delayed special leave petition No. 2816 of 1976.
The result is that this appeal must be and is hereby dismissed, but, in the circumstances of the case, the par ties will bear their own costs.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Explanation II to section 11 C.P.C. provides that for the purposes of the section, the competence of a Court shall be determined irrespective of any provision as to a right of appeal from the decision of such Court.
Explanation VI provides that where persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the per sons so litigating.
The respondents and the appellant were brothers.
The respondents filed a suit for partition of the family proper ties in the Court of Additional Sub Judge of competent jurisdiction.
The appellant on the other hand filed a money suit against one of the brothers in the Court of a Munsiff in which he impleaded his other brothers.
Ultimately, the money suit was transferred to the Court of the Additional Sub Judge, where the partition suit was Rending and both the suits were tried together.
In appeal, the High Court heard and decided both the appeals together and pronounced sepa rate judgments in continuation but under separate headings and a separate decree was prepared in each appeal.
The appellant filed an appeal in this Court under article 133(1)(a) of the Constitution before its amendment, as a matter of right, against the judgment of the High Court in the parti tion suit.
A preliminary objection was taken by the respondents in this Court that the appeal was barred by res judicata in that the appellant did not file an appeal against the judgment and decree in the money suit.
The appellant on the other hand contended that neither in law nor in equity was he barred by res judicata because he filed the appeal in the partition suit as a matter of right, which was not available to him in the money suit.
Dismissing the appeal, HELD: The preliminary objection is supported by section 11 of the Code of Civil Procedure read in the light of Explana tions II and VI.
[644 B] 1(a) Section 11 enables a party to raise the statutory plea of res Judicata if the conditions given therein are fulfilled.
Section 11 contains, in statutory form, with explanations, a very salutary principle of public policy.
[641 C D] In the instant case, the incompetence of the Court, in which the money suit was initially filed, to try the parti tion suit did not matter when the actual hearing of both the cases took place in the same Court.
That Court was compe tent to try both the suits.
After the money suit had been transferred, the second Additional Sub Judge actually tried and decided both of them.
That was enough to make the difference in the jurisdiction of the Court in which the suits were initially filed, quite immaterial.
Similarly the High Court was competent to hear the appeals from judgments in both cases.
It heard and decided the appeals together.
[642 A C] Narhari & Ors.
vs Shankar & Ors. ; distin guished.
Lortankutty vs Thomman & Anr., ; Supp.
S.C.R. 74 followed.
637 Sheoparsan Singh vs Ramnandan Prasad Singh, .AIR 1916 PC 78=43 I.A. 91, Govind Bin Lakshmanshet Anjorlekar vs Dhondba 'Ea ' V Bin Ganba ' RA '17 ' 'V ' Ta ' Mbve, ILR Vol.
XV Bombay 104 and Avanasi Gounden & Ors.
vs Nachammal, ILR 29 Madras 195 referred to.
Bhugwanbutti Chowdhrani vs A.H. Forbes ILR ap proved.
(b) The expression "former suit" in Explanation I of section 11 makes it clear that, if a decision is given before the institution of the proceeding which is sought to be barred by res judicata, and that decision is allowed to become final or becomes final by operation of law, a bar of res judicata would emerge.
[643 B] (c) One of the tests in deciding whether the doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will conap into existence if it is not applied.
In a partition suit each party claiming that the property is joint asserts a right and litigates under a title which is common to others who make identical claims.
If that very issue is litigated in another suit and decided, there is no reason why others making the same claim cannot be held to be claiming the right in common for themselves and others.
Each of them can be deemed, by reason of Explanation VI, to represent all those the nature of whose claims and interests are common or identical.
To hold otherwise would mean that there would be two inconsistent decrees.
[643 G H] In the instant case, the fact that the other suit was a money suit between the appellant and one of his brothers, who was also the respondent in the partition suit, does not make any difference to the applicability of the principle of res judicata.
[643 C] Kumaravelu Chettiar & Ors.
T.P. Ramaswamy Ayyar & Ors, A/R followed.
Sheodhan Singh vs Smt.
Daryao Kunwar, [1966] 3 S.C R. 300 and Bai Lakshmi Rani & Ors.
vs Banamali Sen & Ors., ; referred to.
The question whether there is a bar of res judicata does not depend on the existence of a right of appeal of the same nature against each of the two decisions, but on the question whether the same ' issue, under the circumstances given in section 11, has been heard and finally decided.
[642 C D] In the instant case, the High Court heard and finally decided both the appeals before it.
The mere fact that the appellant could come up to this Court in appeal as of right by means of a certificate of fitness under the unaa mended article 133(1)(c) in the partition suit, could not take away the finality of the decision so far as the High Court had determined the money suit and no attempt was made to question the correctness or finality of that decision even by means of an application for special leave.
[642 D E] 3.
The appellant 's application for condonation of delay in applying for leave to appeal against the High Court 's judgment in the money suit must be dismissed.
His delay in waking up to the existence of the bar of res judicata is much too long to be condoned.
The judgment of the High Court based on the admissions of the appelant, does not disclose any error of law so as to deserve the grant of special leave to appeal.
The partition suit was instituted as long ago as 1947.
If there is a case in which the prin ciple that litigation should have an end ought 'to be applied, it is this.
[644 C F]


judgement:
Civil Appeals Nos. 1237 and 1238/72.
From the Judgment and Order dated 8 11 71 of the Orissa High Court in O.J.C. Nos. 339 and 385 of 1968.
AND Civil Appeal No. 1730 of 1973.
Appeal by Special Leave from the Judgment and Order dated the 26th February, 1973 of the Orissa High Court in O.J.C. No. 130 of 1973.
Gobind Das, (Mrs.) section Bhandare, M.S. Narasimhan, A. K. Mathur, A.K. Sharma and (Miss) Malini Paduval for the Appellants in all the appeals.
D.P. Singh and G.S. Chatterlee for Respondent No. 1 in CAs.
1237 38/72.
Santosh Chatterjee and G.S. Chatterjee for Respondent No. 2 in C.As.
1237 38/72.
B. Parthasarthi for Respondents 1, 3, and 4 in CA 1730/73.
L.N. Sinha, Sol.
Gen. of India and Vinoo Bhagat for Respondent 7 in CA 1730/73.
Nemo for Respondents 2, 5, 6.
in C.A. 1730/73.
The Judgment of the Court was delivered by KHANNA, J.
This judgment would dispose of three civil appeals Nos. 1237 and 1238 of 1972 and 1730 of 1973 against the judgment of Orissa High Court.
The first two appeals have been filed on certificate, while the third appeal has been filed by special leave.
We may first deal with civil appeals 1237 and 1238.
On February 22, 1954 a notification was issued under sub sec tion (1) of section 3 of the Orissa Development of Indus tries, Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act, 1948 (Orissa Act XVIII of 1948) (hereinafter 668 referred to as the Act) by the Government of Orissa for the acquisition of 78 square miles of land for the "development of industries,.
namely, establishment of a steel plant and allied and ancillary industries".
The steel plant mentioned in the notification subsequently ' came to be known as the Rourkela steel plant.
Another notification! was issued on February 9, 1955 for the acquisition of further four square miles of land for the above purpose.
It may be mentioned that according to section 5 (1) of the Act, when a notice of acquisition is served or is published under section 4, the land shall vest absolutely in the State Government free from all encumbrances on the date the ' notice is served or pub lished in the gazette.
The appellants, who were owners of some of the acquired lands, filed writ petitions before the ' High Court challenging the validity of the acquisition.
The High Court dismissed both the petitions.
In appeal before us, Mr. Gobind Das on behalf of the appellants has contended that the State Government was not competent to acquire the land in question under the Act for the establishment of a steel plant.
Our attention is invit ed in this connection to sub section (1 ) of section 3 of the Act which provides inter alia that whenever it appears to the 'State Government that it is necessary or expedient to acquire speedily any land for the purpose of the devel opment of industry, a notification to that effect shall be published in the gazette stating the area and the boundaries of the land proposed to be acquired.
The argument of Mr. Gobind Das is that the acquisition of the land for the establishment of a steel plant cannot be said to be for the purpose of the development of the industry.
It is not denied by the learned counsel that a steel plant constitutes an industrial undertaking and that the object of establish ing a steel plant is not different from the purpose of the development of the industry as ordinarily understood.
It also cannot be disputed that Rourkela steel plant consti tutes a big milestone in the industrial development of the country.
The contention of Mr. Gobind Das, however, is that the words "development of industries" have a limited meaning as defined in the Act and the establishment of a steel plant cannot be considered to be for development of industries.
The definition of "development of industries" has been given in section 2(c) of the Act.
According to the definition, development of industries means and includes the construc tion of the Hirakud Dam and other dams and reservoirs, Hydro Electric Projects and such other schemes or projects as the State Government may by notification from time to time, specify in this behalf.
We have already mentioned above that the first notification for the acquisition of land was issued on February 22, 1954.
Two days before that notification, on February 20.
1954 the Governor of Orissa issued a notification in pursuance of clause (c) of section 2 of the Act.
In that notification, it was stated that the project for the establishment of a steel plant and allied and ancillary industries in the block of villages round about Rourkela.
shall be included within the meaning of the expression "development of industries", as defined in clause (c) of section 2 of the Act.
In the face of this notification, we are of the opinion that the establishment of the steel plant and ancillary industries at Rourkela should be held to answer to the definition of "development of industries", as given in the Act.
We are unable to subs 669 cribe to the submission of Mr. Gobind Das that the schemes and projects which could be the subject matter of a notifi cation under section 2(c) must be such as are similar to Hirakud Dam or other HydroElectric projects.
Clause (c) of section 2 confers wide powers on the State Government to notify any scheme or project as it may consider appropriate for the development of industries and we find nothing in that clause that the scheme or project which can be the subject matter of a notification must be one similar to Hirakud Dam or other dams or reservoirs or hydro electric projects.
It is then argued by Mr. Gobind Das that part of the lands which were acquired for the purpose of steel plant and ancillary industries are being used as a civil township.
It is contended that the acquired land could only be used for the steel plant and ancillary industries and not for a civil township.
This contention is equally devoid of force.
The establishment of a steel plant necessarily postulates the construction of residential quarters for the workmen to be employed in the ' plant.
In addition to that, lands would be needed for shopping areas, for schools for the children of the employees, for play grounds, for hospitals and for residential quarters of persons opening their shops cater ing to the needs of the employees of the steel plant.
Lands would likewise be need for post offices, banks, clubs, parks, cinemas, roads, police stations as also for cremation and burial of the dead.
Land would also be needed for a variety of other purposes and civic amenities.
A township is a necessary adjunct and concomitant of a big steel plant.
The fact, therefore, that part of the land which was ac quired has been used for civil township would not, in our opinion, affect the validity of the acquisition of the land.
In civil appeal 1237 of 1972, Mr. Gobind Das has also advanced an argument that possession of the land was not taken from the appellant.
We, however, find that the judg ment of the High Court shows that no such contention was advanced before the High Court when the writ petition giving rise to this appeal was argued.
In the circumstances, we are not inclined to permit the appellant to raise this contention for the first time in appeal before us.
Civil appeal 1730 of 1973 arises out of writ petition to challenge the validity of a notification dated march 19, 1958 under section '4 of the Land Acquisition Act for the acquisition of 31.06 acres of land for expansion of rail facilities to serve the steel plant at Rourkela.
A writ petition to challenge this notification was filed on February 3, 1973.
The contention which was advanced before the High Court and has been repeated before us with a view to challenge the validity of the acquisition of this land is that fourteen years after the acquisition of the land, the railway authorities for whom the land was acquired have transferred 3.21 acres of land to the Notified Area Commit tee, Rourkela.
The above submission, in our opinion, is without merit.
According to the affidavit filed on behalf of the respondents, the above mentioned area is sought to be transferred to the Notified Area Committee because the Notified Area Committee is the appropriate body to construct and maintain the 670 link road, bus and taxi stands and shops surrounding the railway station.
The averments contained in the affidavit thus go to show that 3.21 acres of land is not being used for a purpose extraneous from that for which the land was initially acquired.
Apart from that, we find that this Court has recently held in the case of Gulam Mustafa & Ors.
vs State of Maharashtra & Ors.
(1) that there is no princi ple of law by which a valid, compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the decla ration.
All the three appeals consequently fail and are dis missed but in the circumstances without costs.
Appeals dismissed.

summary/full:
Section 2(c) of the Orissa Development of Industries, Irrigation, Agriculture, Capital construction and Resettle ment of Displaced persons" (Land Acquisition) Act, 1948 (Act XVIII of 1948), defines development of industries to mean and include the construction of Hirakund Dam and other dams and reservoirs, Hydro Electric Projects and such other schemes or property as the State Government may by a notifi cation specify in this behalf.
By a notification dated 20th February, 1954 it was stated that "the project for the establishment of a steel plant and allied and ancillary industry in the block of villages round about Rourkela shall be included within the meaning of the expression "develop ment of industries" as defined in cl.
(c) of section 2 of the Act.
By notification dated 22nd February, 1954 and 9th Febru ary, 1955 82 sq.
miles of land was acquired for the "devel opment of industries, namely establishment of steel plant and allied and ancillary industries".
The above land vested absolutely in the State Government free from all encum brances on the dates of the above notifications.
The writ petitions filed by some owners of some of the acquired lands challenging the validity of the acquisition were dismissed in limine.
In appeal to this Court, the appellants contended (a) the State Government was not competent to acquire the land in question under the Act for the establishment of a steel plant as it cannot be said to be for the purpose of the development of industry; (b) the acquired land could only be used for the steel plant and ancillary industries and not for a civil township; (c) the transfer of 3.21 acres of land by the Railway authorities long after 14 years of the acqui sition to the Notified Area Committee for construction of taxi stand, busroad etc.
in and around the Railway Station is bad.
Dismissing the appeals to this Court, HELD: (1) In the face of the notification dated 20th February, 1954 and 2(c) of the Orissa Development .of
Indus try, Irrigation, Agriculture, Capital Construction and Resettlement of Displaced Persons (Land Acquisition) Act 1948, the establishment of steel plant and ancillary indus tries at Rourkela answers to the definition of development of industries as given in the Act.
[668 G H] Clause (c) of Section 2 confers wide powers on the State Government to notify any scheme or project as it may consid er appropriate for the development of industries and there is nothing in that clause that the scheme or project can be the subject matter of a notification must be similar to Hirakund Dam or other dams or reservoirs or hydro electric projects.
[669 A B] (2) The contention that the acquired land could only be used for the steel plant and ancillary industries and not for the civil township is devoid of force.
A township is a necessary adjunct and concomitant of a big steel plant.
The establishment of a steel plant necessarily postulates the construc 667 tion of residential quarters for the workmen, shopping areas, schools, hospitals, post offices etc.
The fact therefore that part of the land which was acquired has been used for civil township would not affect the validity of" the acquisition of the land.
[669 C D] (3) There is no principle of law by which a valid, compulsory acquisition stands void because long later the requiring authority diverts it to a public purpose other than the one stated in the declaration.
In the instant case, the transfer of 3.21 acres of the land by the Railways is to the Notified Area Committee who is the appropriate body to construct and maintain the link roads, bus and taxi stands and shop surrounding the Railway Station.
The land is not being used for a purpose extraneous from that for which the land was initially acquired.
[669 G H. 670 A B] Gulam Mustafa & Ors.
vs State of Maharashtra & Ors.
[1976] I SCR 875 applied.


judgement:
Civil Appeal No. 1386 of 1976.
From the Judgment and Order dated 21 9 76 of the Karna taka High Court in W.A. No. 150 of 1976.
H.B. Datar, Sanjeev Aggarwal and R.B. Datar for the Appel lant.
S.T. Desat, S.K. Mehta, K.R. Nagara]a and P.N. Puri for Respondent.
661 The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by certificate which is directed against the judgment and order dated September 21, 1976, of the High Court of Karnataka at Bangalore reversing the judgment and order dated March 3, 1976 of a Single Judge of that Court dismissing writ petition No.6945 of 1975 filed by the respondent involves a substantial question of law of general public importance relating to the validity of the levy of what is styled as 'supervision fee ' under section 124 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act ') read with rule 26 of the Karnataka Municipalities Taxation Rules, 1965 (herinafter referred to as 'the Rules ').
The facts of the case lie in a short compass and may be stated as follows: Iron ore which is extracted from its mine heads in Hospet Taluka is brought over and stocked in Hubli Railyard by the Mysore Minerals Limited which is a Government undertaking.
Having taken up the contract of transhipment of the iron ore from Hubli Railyard to Karwar and Belekeri harbours, the Mysore Minerals Limited has sublet the same to the West End Minerals and Exports Private Limited.
The latter has in turn entrusted the execution of the contract to.
the re spondent which is engaged in transport business.
The iron ore is accordingly lifted by the respondent in its trucks from Hubli Railyard and carried to Karwar and Belekeri harbours.
The trucks of the respondent carrying the iron ore 'have (en route) to pass.
in the course of transit through the limits of various town municipalities situate on the highway of which the appellant happens to be one, but they do not unload and reload the iron ore at any intermedi ary point or stop.
The appellant, on the basis of a resolution passed by it on January 25, 1975, and approved by the State Government levies the aforesaid fee of Re. 1/ per truck under section 124 of the Act read with rule 26 of the Rules.
The trucks of the respondent using the State highway within the munici pal limits of Kalghatgi, District Dharwar are accordingly made to pay the fee for each of their trips.
Feeling that the fee realised by the appellant was invalid, the respondent filed a writ petition, being writ petition No. 6945 of 1975 in the High Court of Karnataka challenging the levy of the fee and seeking the issuance of a writ of mandamus restraining the appellant from realising the said fee.
A Single Judge of the High Court upheld the fee in question and dismissed the writ petition holding that the expression 'importer ', 'place of import ' and 'place of export ' as used in section 124 (1 ) of the Act are compre hensive enough to describe a person who merely brings the goods within the municipal limits for immediate exportation and the respondent who answered that description was bound to pay the fee.
Aggrieved by this judgment and order, the respondent took the matter in appeal to a Division Bench of the High Court which allowed the appeal and issued the writ prayed for by the respondent by its 662 judgment and order dated September 21, 1976.
It is against this; judgment and order that the present appeal is direct ed.
At the hearing of the appeal, counsel have reiterated the contentions urged on behalf of the parties in the High Court.
The sole question that arises for determination in this appeal relates to the validity of the aforesaid levy.
For a proper detemination of this question, it is necessary to advert to section 124 of the Act and rule 26 of the Rules.
"Section 124: Non liability for octroi and refund of octroi ongoods in transit. (1) Any article or animal brought into the municipal limits for the purpose of immediate exportation may at the option of the importer not to be subjected to levy of octroi if such article or animal be conveyed direct from the place of import to the place of export by such routes, within such time, and under such supervision as the municipal council may by resolution determine.
For purposes of this subsection the municipal council shall on payment of the prescribed fees issue promptly the necessary transport permits.
(2) When any article in respect of which octroi has been paid is exported from the municipal limitS, in the same condition in which it was brought into or received from beyond the municipal limits, the amount of octroi paid Shall, subject to such rules as may be prescribed, be refunded.
" "Rule 26: .
In case the person bringing the goods wishes to transport the goods at once beyond the limits of the municipality he shall do so only after obtaining a transport permit in Form IV, on payment of a fee of rupees two for each lorry and rupee one in other cases in the case of a city municipal council and rupee one for each lorry and fifty paise in other cases in the case of a town municipal council.
" The opening words of section 124 of the Act viz. "any article or animal brought into the municipal limits for the purpose of immediate exportation" on the construction of which the up shot of the case, depends are very important.
They imply processes of 'importing into ' and 'exporting from ' the municipal limits of goods or animals and are indicative of an element of repose and rest of the goods within the municipal limits.
As rightly held by the Divi sion Bench of the High Court, the expressions 'brought into ' and 'immediate exportation ' do not comprehend within their sweep the continuous process of transit of goods, by vehi cles which merely use the State highways passing through the areas which lie within the municipal limits.
In the.
instant case, the iron ore is carried in the trucks of the respondent which merely pass through the areas which lie within the municipal limits and is not unloaded and reload ed at any place within the municipal 663 area.
As such, the important element of repose and rest which the words 'brought into the municipal limits for the purpose of immediate exportation ' imply is absent in the instant case.
In The Central India Spinning and Weaving and Manufac turing Company Limited, The Empire Mills, Nagpur vs The Municipal Committee, Nagpur(1), this Court while discussing the meaning of the expression 'a terminal tax on goods or animals imported into or exported from the limits of the municipality ' occurring in section 66(1)(0) of the C.P. and Berar Municipalities Act, 1922, held that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax.
The following observations made therein which have an impor tant bearing on the decision.
of the present appeal are worth quoting : "The efficacy of the relative contentions of the parties requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and "the limits of the Municipality".
In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him.
. .Lexico logically they (the words 'import ' and "export;) do not have any refer ence to goods in 'transit ' a word derived from transit bearing a meaning similar to trans port, i.e. to.
go across.
The dictionary meaning of the words 'import ' and 'export ' is not restricted to their derivative meaning but bear other connotations also . .
The word "transit", in the Oxford Dictionary means the action or fact of passing across or through; passage or journey from one place or point to another; the passage or carriage of persons or goods from one place to another; it also means to pass across or through (some thing) to traverse, to cross.
Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods "imported into or exported from" because they are neither being exported nor imported but are merely goods carried across a particular stretch of terri tory or across a particular area with the object of being transported to their ulti mate ' destination which in the instant case was Nagpur . .
By giving to the words "imported into or exported from" their deriva tive meaning without any reference to the ordinary connotation of these.
words as .used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended.
The effect of the construction of "import" .
or "export" in the manner in sisted upon by the respondent would make rail borne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax .on their arrival at the railway station or ; 1958 S.C. 352: 664 departure therefrom or both which would not only result in inordinate delays and unbearable burden on trade both inter State and intra State.
It is hardly likely that that was, the intention of the Legislature.
Such an interpretation would lead to absurdity which has according to the rules of interpretation, to be avoided.
" The enunciation of law in the above case fully covers the present case.
In the present case also, the iron ore which is in transit from Railyard at Hubli to Karwar and Belekeri harbours can hardly be characterised as goods brought into or exported from the municipal limits of Kalghatgi because they are neither imported into nor export ed from any point within the municipal limits but are merely carried across a particular stretch of territory or across a particular area with the object of being transported to its ultimate destination.
In Brown vs State of Maryland(1), Chief Justice Marshall dealing with the word! 'importation ' said as follows : "The practice of most commercial nations conforms to this idea.
Duties, according to that practice, are charged on those articles only which are intended for sale or consump tion in the country.
Thus sea stores, goods imported and re exported in the same vessel, goods landed and carried over land for the purpose of being re exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties.
The whole course of legislation on the subject shows that in the opinion of the legislature the right to.
sell is connected with the payment of the duties.
" In Wilson vs Robertson(2) where section 33 of The 48 Geo. 3, c. civ. imposed a duty on all goods "imported into or exported from Berwick Harbour", and the harbour extend ed from Berwick Bridge down the Tweed to the sea, but not above the bridge and goods were brought up the river in a seagoing vessel which, having first used the Harbour Commis sioners ' rings and posts in order to moor the vessel while lowering the masts, passed through Berwick Bridge and un loaded her cargo about 200 yards above the bridge and beyond the limits of the harbour; it was held that these goods were not "imported into" ' the harbour and as such liable to duty.
Bearing in mind the above authoritative enunciation of law, we are ' of opinion that as the continuity or continuous process of the carriage of iron ore is not in any way in fact broken within the municipal limits of Kalghatgi, the respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with rule 26 of the Rules and as such is not liable to pay the octroi or what is styled as 'supervision fee '.
A contrary interpretation would make rail borne goods passing through the Railway Stations within the (1) ; L. Ed. 678, 686.
(2) 665 limits of the municipality liable to the imposition of the fee on their arrival at these Railway Stations and depar ture therefrom which could not be the intention of the Legislature.
The High Court was, therefore, perfectly justified in allowing the appeal and issuing the writ sought for.
In the result, the appeal fails and is hereby dismissed but in the circumstances of the case without any order as to costs.
P.H.P. Appeal dismissed.

summary/full:
The respondent is a transporter.
The respondent lifts the iron ore in his trucks from Hubli Railway yard and carries it to Karwar and Belekeri harbours.
The trucks of the respondent have to pass in the course of transit through :he limits of various Town Municipalities situate on the highway of which the appellant happens to be one.
The respondent does not unload or re load the iron ore at any intermediary point or stop.
The appellant passed a resolu tion in purported exercise of section 124 of the Karnataka Munic ipalities Act, 1964 read with rule 26 of the.
Karnataka Municipalities Taxation Rules, 1965, imposing a fee of Re. 1/ per trip of each truck.
The respondent filed a writ petition challenging the levy of the fee.
The learned single Judge of the High Court dismissed the writ petition.
The Division Bench, however, allowed the appeal.
Dismissing the appeal by certificate, HELD: The present case is not covered by "any article or animal brought into the municipal limits for the purpose of immediate exportation" mentioned in section 124.
"Brought into" and "immediate exportation" do not comprehend within their sweep the continuous process of transit of goods by vehicles which merely use the State High Way passing through the areas which lie within the municipal limits.
In the instant case, the iron ore is carried in the trucks of the respond ent which merely pass through the areas which lie within the municipal limits and is not unloaded and reloaded at any place within the municipal areas.
The continuity or contin uous process of the carriage of iron ore is not in any way, in fact, broken within the municipal limits.
The respondent cannot be said either to bring in or export the iron ore as contemplated by section 124 of the Act read with Rule 26 of the Rules and, as such, is not liable to pay octroi or what is styled as supervision fee.
A contrary interpretation would make rail borne goods passing through the Railway Station within the limits of the municipality liable to the imposi tion of the fee on their arrival at the Railway Station and departure therefrom which could not be the intention of the Legislature.
[662 G H, 664 B, G H, 665 A B] The Central India Spinning and Weaving and Manufactur ing Company Limited, the Empire Mills, Nagpur vs The Munic ipal Committee, Nagpur ; 1958 SC 352, fol lowed.
Brown vs State of Maryland ; , 442; ; , 686 and Wilson vs Robertson , quoted with approval.