judgement:
esent case the seized articles were removed by the accused it was unnecessary to deal any further with this aspect of the case because if any order was passed for return of the bags the order could not be enforced [251 E] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 182 of 1966.
Appeal by special leave from the judgment and order dated January 31, 1966 of the Patna High Court in Criminal Appeal No. 210 of 1966.
Rameshwar Dial and A. D. Mathur, for the appellants.
Lal Narayan Sinha, Advocate General for.
the State of Bihar and, U. P. Singh, for the respondent.
236 L. M. Singhvi and section P. Nayar, for the Union of India.
Lal Narayan Sinha, Advocate General for the State of Bihar and D. Goburdhun, for the State of Bihar.
The judgment of the Court was delivered by Ray, J.
This is an appeal by special leave from the judgment of the High Court at Patna challenging first the authority of the Excise Inspectors as Officers of Customs, namely, public servants and secondly their power, to arrest Nazir Mian and seize 2 bags of cloves from his possession under sections 173 and 178 respectively of the .
The facts giving rise to this appeal are as follows.
On 13 December, 1961, Inspectors Uma Shankar and Bisuddha Nand Jha and Constable Bishan Singh, all belonging to the Central Excise Department were on checking patrol 'duty on 330 Down Barauni passenger train proceeding from Barharwa to Pakur which are Railway Stations in Santhal Parganas in Bihar.
The appellant Nazir Mian was travelling by Barauni passenger train.
When the train stopped at Pakur the excise staff found Nazir Mian in the latrine of one of the compartments of the train with two bags of cloves weighing about 2 pounds 10 seers.
The door of the latrine was closed.
Inspector Uma Shankar pushed the door when it was opened from inside.
Uma Shankar disclosed his identity and asked if duty had been paid for the cloves.
Nazir Mian answered in the negative.
Inspector Uma Shankar thereupon seized the bags and arrested Nazir Mian.
While this was being done, the train started.
Shortly after the train had started it stopped at a level crossing in consequence of one of the persons of the excise staff pulling the alarm chain.
The excise staff got down,with Nazir Mian.
The two bags of cloves were also brought down.
Certain persons collected on the spot.
Nazir Mian is alleged to have been rescued by other appellants and the bags of cloves were taken away.
In the scuffle that ensued, one of the Inspectors received simple injuries and the other a grievous injury.
The three appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah and two other persons Jhaman Mian and Raghunath Prasad Yadav were all charged under section 147, 149, 333 and 379 of the Indian Penal Code for forming an unlawful assembly in assaulting Inspectors Uma Shankar and B. N. Jha and in rescuing accused Nazir Mian from their lawful custody and in removing two bags of seized cloves from their possession.
The accused persons with the exception of Raghunath Prasad Yadav were further charged under section 332 of the Indian Penal Code for voluntarily causing hurt to Uma Shankar a public 237 servant in the discharge of his public duties.
The accused with the exception of Nazir Mian were charged under section 225 of the Indian Penal Code for intentionally offering resistance to the lawful apprehension of accused Nazir Mian.
Nazir Mian was also charged under section 7 of the for contravention of section 5 of the, said Act and also under section 167 item 81 of the for contravention of 'Section 19 of the said Act and also under section 5 of the Imports and Exports Control Act, 1947 for contravention of section 3(1) of the Imports Control Order, 1955.
At the trial before the Assistant Sessions Judge, Dumka in Santhal Parganas, Raghunath Prasad Yadav was acquitted of all the charges and the appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah along with Jhaman Mian were all convicted under sections 147 and 332 of the Indian Penal Code.
Jhaman Mian, Ram Kirpal Bhagat and Ganga Dayal Shah were also convicted under sections 225 and 333 of the Indian Penal Code.
Ram Kirpal Bhagat and Nazir Mian were also convicted under section 379 of the Indian Penal Code.
The said four accused including the three appellants were sentenced to several terms of imprisonment and the said sentences were ordered to run concurrently.
The Assistant Sessions Judge, Dumka, however, acquitted the appellant Nazir Mian of the charges under the , the and the Imports and Exports Control Act.
The Assistant Sessions Judge, Dumka held that section 6 of the Imports and Exports Control Act, 1947 raised a bar of taking cognizance by any court except upon a complaint in writing made by an officer authorised in that behalf by the Central Government by general or special order and in the absence of any complaint in writing by the officer concerned, the Assistant Sessions Judge, Dumka found that he had no jurisdiction to take cognizance of the offence under this Act.
The Assistant Sessions Judge, Dumka, also held that section 187A of the laid down that ' cognizance as to offence was to be taken upon a complaint in writing made by the Chief Customs Officer or any other officers of customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer.
The Assistant Sessions Judge, Dumka, found that in the present case there was no such complaint, and, therefore, he did not take cognizance for the contravention of section 19 of the .
The appellants and Jhaman Mian thereafter preferred an appeal to the High Court.
In the High Court the appellant Nazir 238 Mian contended that Inspector Uma Shankar had no power to arrest him and seize the cloves, and, therefore, the Inspector could not be held to have acted in the discharge of his public duties.
In aid of that contention it was submitted first, that the Imports and Exports Control Act, 147, the , the and the Indian Tariff Act, 1934 were not extended to Santhal Parganas and were not, therefore, applicable.
The second contention was that cloves were not dutiable articles.
The third contention was that section 173 of the had no application, because there was no evidence of reasonable suspicion that Nazir Mian was guilty of an offence under the .
It was also contended that Inspector Uma Shankar was not an officer of the Customs.
The High Court came to the conclusion that the and the Imports and Exports Control Act, 1947 applied to the Santhal Parganas with the result that the import of cloves was prohibited; duty was payable on cloves; the Inspectors were officers of Customs within their respective jurisdiction, and, therefore, they could exercise power under section 173 of the and they could seize the goods under section 178 of the .
The High Court further held that under section 178A of the , the burden was on the appellant Nazir Mian to prove that cloves seized were not smuggled goods and that the appellant Nazir Mian failed to do so.
The High Court held that the appellants had been rightly convicted for certain offences but the sentences under section 332 of the Indian Penal Code against Nazir Mian, Ganga Dayal Shall were set aside to correct an error in the judgment of the Assistant Sessions Judge, Dumka, who at one place convicted all the four accused under section 332 of the Indian Penal Code and at another place found only Jhaman Mian and Ram Kirpal Bhagat guilty of the offences under section 332 of the Indian Penal Code.
Counsel on behalf of the appellants contended first, that the did not apply to the place of occurrence, and, therefore, the arrest and the seizure were unlawful.
The second contention was that the did not apply to the place of occurrence, and therefore, the Inspectors were not officers of Customs who could invoke the authority of the to arrest and seize the appellant Nazir Mian.
The third contention was that the seizure of cloves was not authoorised by section 178 of the Sea.
Customs Act, 1878 nor was the arrest authorised under section 173 of the Sea Customs The arrest and the seizure under the were impeached as illegal on the ground that the did not apply to the place of occurrence, namely, Pakur in Santhal Parganas in Bihar.
The fourth contention was that section 178A of the could not apply, because there was no notification to attract the application of the said section.
The first question which falls for decision is whether the applies.
In order to appreciate this contention it is necessary to refer to the statutes by virtue of which the is said to apply to the place of occurrence.
The Bihar Regulation I of 1951 enacted that the Imports and Exports Control Act, 1947 was applicable to Santhal Parganas.
The relevant sections under the Imports and Exports Control Act, 1947 in the present case are the two sub sections in section 3 which are as follows: "3. Powers to prohibit or restrict imports and exports.
(, 'I) The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order: (a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description; (b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried.
(2) All goods to which any order under subsection (1)applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the , and all the provisions of that Act shall have effect accordingly".
The first contention on behalf of the appellants is that sub section (2) of section 3 of the Imports and Exports Control Act, 1947 means that only section 19 of the is applicable and the other section do not apply.
The second contention on behalf of the appellants that the Bihar Regulation I of 1951 is in excess of the power of the Governor contained in the Fifth Schedule to the Constitution will be 'dealt with hereinafter.
Counsel on behalf of the appellants contended that sec 240 tion 3(2) of the Imports and Exports Control Act, 1947 meant that goods to which sub section (1) of section 3 of the Act of 1947 applied were deemed to be goods of which the import or ,export had been prohibited under section 19 of the , and, therefore, only section 19 of that Act was to have effect for that restricted purpose.
In aid of that contention reliance was placed on the decision of this Court in The Collector ,of Customs, Madras vs Nathella Sampathu Chetty & Anr.(1).
The question for consideration in the Madras Customs case was whether section 178A of the applied.
The Collector of Customs there seized gold because he was, prima facie, of the view that it had been smuggled and notice was issued to the respondent to show cause why the gold should not be confiscated.
Import of gold was dealt with by section 8 of the Foreign Exchange Regulation Act, 1947 which provided that the Central Government might by notification order that no person except with the general or special permission of the Reserve Bank and on payment of prescribed fee bring or send into India any gold or silver.
Section 23A of the Foreign Exchange Regulation Act which came into existence in the year 1952 was as follows : "23A.
Without prejudice to the provisions of section 23 or to any other provision contained in this Act the restrictions imposed by sub sections (1) and (2) of section 8, sub section (1) of section 12 and clause (a) of sub section (1) of section 13 shall be deemed to have been imposed under section 19 of the and ail the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted".
Section 178A of the was introduced into the Act in the year 1955.
It was, therefore, contended that when the Foreign Exchange Regulation Act, 1947 was enacted the provisions of the were not at all attracted, and secondly.
when section 23A was introduced in 1952 as a part of the Foreign Exchange Regulation Act, 1947 it would have the effect of bringing into operation only those sections of the which were part of the in 1952.
Counsel for the appellants relied on the observations at page 834 of the Report in the Madras Customs case(,) that "the effect of section 23 A is to treat the text of the notification by the Central Government under section 8(l) as if it had been (1) ; 241 issued under section 19 of the with the title and the recital of the source of power appropriate to it by the creation of legal fiction".
Counsel for the appellants extracted from these observations the proposition that only section 19 of the would attracted in the present case to make effective the notifications under the Imports Control and Exports Control Act, 1947 and the Imports Control Order, 1955 and no other section of the would be attracted.
The decision of this Court in the Madras Customs case( ')does not support that contention for the obvious reason that section 178A of the was held to be applicable there.
If only section 19 of the were attracted for the purpose of giving sanction to notifications under the Foreign Exchange Regulation Act section 178A of the could not have been held to be applicable in Madras Customs case( ').
Further this Court in the Madras Customs case( ') at page 799 of the Report held first, that on the law as it stood upto 1952 before section 23A of the Foreign Exchange Regulation Act was inserted, importation of gold in contravention of the notification of August, 1948 issued under section 8(l) of the Foreign Exchange Regulation Act would have been an importation contrary to section 19 of the , with the result that any person concerned in the act of importation would have been liable to the penalties specified in the third column of section 167(8) of the and imported gold would have been liable to confiscation under the opening words of that column.
This conclusion indicates.
that a restriction on the import of gold by a notification under the Foreign Exchange Regulation Act would be a prohibition or restriction on importation or exportation of gold under section 19 of the which occurs in Chapter IV of the .
The other conclusion of this Court in the Madras Customs case was that though section 187A of the was introduced in the, year 1955 section 23A of the Foreign Exchange Regulation Act, 1947 which came into exist ence in 1952 would be operative to introduce the subsequent amendments of the in dealing with con travention of the Foreign Exchange Regulation Act in relation to importation or exportation of gold.
In dealing with the contention in the Madras Custom case that section 178A of the did not apply because it was not a part of the when section 23A of the Foreign Exchange Regulation Act was en (1) ; 242 acted in 1952, the decision of the Judicial Committee in The Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd.( ') was referred to by this Court for the purpose of showing that in the Hindustan Co operative Insurance Society case the Calcutta Improvement Trust Act, 1911 referred to the provisions of the Land Acquisition Act by enacting that "the provisions of the Land Acquisition Act shall apply as if they were herein re enacted" to mean that the Calcutta Improvement Trust Act 1911 in adopting the provisions of the Land Acquisition Act did not intend to bind themselves .to any future additions which might be made to the Land Acquisition Act.
The other consideration which weighed with the Judicial Comniittee was that the Calcutta Improvement Trust Act did nothing more than incorporate certain provisions from an existing Act, and for convenience of drafting did so by reference to that Act instead of setting out for itself at length the provisions which it was desired to adopt.
This Court said that there was no analogy between the manner in which the provisions of the, Land Acquisition Act had been incorporated in the Calcutta Improvement Trust Act, 1911 and the operation of the as a result of section 23A of the Foreign Exchange Regulation Act.
Section 23A of the Foreign Exchange Regulation Act was construed to mean that the restrictions imposed by section 8(l) of the Foreign Exchange Regulation Act shall be deemed to have been imposed under section 19 of the and all the provisions of the shall have effect accordingly.
At page, 837 of the Report this Court said that a notification issued under section 8(l) 'of the Foreign Exchange Regulation Act was deemed for all purposes to be a notification issued under section 19 of the and the contravention of the notification attracted to it each and every provision of the which was in force at the date of the notification.
The ratio of the decision in the Madras Customs case( ') is that the provisions of the were attracted by relation to the provisions of section 19 of the which deal with restrictions or prohibitions on import 'or export and the notifications under the Foreign Exchange Regulation Act prohibiting import of gold become an integral part of section 19 of the , and, therefore, the contravention of such a notification would bring into effect each and every provision of the .
In the present case, sub section (2) of section 3 of the Imports and Exports Control Act, 1947, enacts that goods to which any (1) 59 4A. 259.
(2) ; 243 order under sub section (1) applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the and the second limb of subsection (2) of section 3 is that all the provisions of that Act (meaning thereby the ) shall have effect accordingly.
To accede to the contention of counsel for the appellants that only section 19 of the will apply and no other provision of the will be effective or operative will be not only to render the words "and all the provisions of that Act shall have effect only" otiose but also nugatory.
When the statute enacts that all the provisions of that Act shall have effect accordingly, it will be an error to hold in spite of the language of such legislation that the provisions of the shall not have effect.
The effect of bringing into an Act the provisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as if those provisions have been enacted in it for the first time.
The nature of such a piece of legislation was explained by Lord Esher M. R. in Re Wood 's Estate(1) that "if some clauses of a former Act were brought into the subsequent Act the legal effect was to write those sections into the new Act just as if they had been written in it with the pen".
This Court noticed in the Madras .
Customs case 2 the distinction between a mere reference to or a citation of one statute in another on the one hand and an incorporation on the other, for the purpose of showing as to what would be the effect of the repeal of the former statute on the latter statute.
It is in that context that this Court observed that if section 19 of the would be repealed then there would no longer be any legal foundation for invoking the penal provisions of the to a contravention of a notification under section 8(l) of the Foreign Exchange Regulation Act.
The ratio is that if the contravention of the, notification under the Foreign Exchange Regulation Act is equated with a contravention of the notification under section 19 of the , 1.878, the effacement of section 19 of the , 1 878 from the statute book would naturally remove the substratum of the .
In the present case, the provisions of the are attracted by reason of the provisions contained in section 3 of the Imports and Exports Control Act, 1947 and on the authority of the decision of this Court in the Madras Customs case( ') all that can be said is that if section 19 of the were repealed then the would not be attracted.
Section 19 of the Sea Customs (1) (1881] (2) 119621 3 S.C.R. 786.
has not been repealed and was extant and is now reenacted as section 11 in the Sea and there has been corresponding change in the Imports and Exports Control Act, 1947 by reference to the Sea and section 11 thereof.
The second question which falls for consideration is whether the Bihar Regulation I of 1951 is in excess of the Governor 's powers.
The contentions were: first, that the Regulation I of 1951 could not at all have been made; secondly, that Regulations deal with the subject matter and did not mean power to apply law and thirdly, the power to extend a law passed by another legislature was said to be not a legislative function, but was a conditional legislation.
The legislation, in the present case, is in relation to what is described as Scheduled Areas.
The Scheduled Areas are dealt with by Article 244 of the Constitution and the Fifth Schedule to the Constitution.
Prior to the Constitution, the Excluded Areas were dealt with by sections 91 and 92 of the Government of India Act, 1935.
The excluded and the partially excluded areas were areas so declared by order in Council under section 91.
and under section 92 no act of the Federal Legislature or of the Provincial Legislature was to apply to an excluded or a partially excluded area unless the Governor by public notification so directed.
Sub section (2) of section 92 of the Government of India Act, 1935 conferred power on the Governor to make regulations for the peace and goods government of any area in a Province which was an excluded or a partially excluded area and any regulations so made might repeal or amend any Act of the Federal Legislature or the Provincial Legislature or any existing Indian law which was for the time being applicable to the area in question.
The extent of the legislative power of the Governor under section 92 of the Government of India Act, 1935 in making regulations for the peace and good government of any area conferred on the Governor in the words of ]Lord Halsbury "an utmost discretion of enactment for the attainment of the objects pointed to".
(See Riel vs The Queen) (1).
In that case the words which fell for consideration by the Judicial Committee were "the power of the Parliament of Canada to make provisions for the administration, peace, order and good government of any territory not for the time being included in any province" It was contended that if any legislation differed from the provisions which in England had been made for the administration, peace, order and good government then the same could not be sustained as valid.
That contention was not accepted.
These words were held to embrace the widest power to legislate for the peace and good government for the area in question.
(1) L.R. 10 A.C. 657 at 658.
245 The Fifth Schedule to the Constitution consists of 7 para graphs and consists of Parts, A, B, C and D. Paragraph 6 in.
Part C deals with Scheduled Areas as the President may by order declare and there is no, dispute in the present case that the Santhal Parganas falls within the Scheduled Areas.
Paragraph 5 in the.
Fifth Schedule deals with laws applicable to Scheduled Areas.
Sub paragraph 2 of paragraph 5 enacts that the Governor may, make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
Undersub paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or, any existing law which is for the time being applicable to the area.
in question.
It may be stated that a contention was advanced by counsel for the appellants that section 92 of the Government of India Act, 1935 was still in operation and the Governor could only act under that section.
This contention is utterly devoid of any substance, because section 92 of the Government of India Act, 1935 ceased to exist after repeal of the Government of India Act, 1935 by Article 395 of the Constitution.
It was contended that the power to make regulations did not confer power on the Governor to apply any law.
It was said that under section 92 of the Government of India Act, 1935 the Governor could do so but under the Fifth Schedule of the Constitution the Governor is not competent to apply laws.
This argument is without any merit for the simple reason that the power to make regulations embraces the utmost power to make laws and to apply laws.
Applying law to an area is making regulations which are laws.
Further the power to apply laws is inherent when there is a power to repeal or amend any Act, or any existing law applicable to the area in question.
The power to apply laws is really to bring into legal effect sections of an Act as if the same Act had be en enacted in its entirety.
Application of laws is one of the recognised forms of legislation.
Law can bemade by referring to a statute or by citing a statute or by incorporating a statute or provisions or parts thereof in a piece of legislation as the law which shall apply.
It was said by, counsel for the apppellants that the power to applv laws under the Fifth Schedule was synonymous with conditional legislation.
In the present case, it cannot be said that the Bihar Regulation I of 1951 is either a piece of delegated legislation or a conditional.
legislation.
The Governor had full power to make regulations which are laws and just as Parliament can enact that a piece of legislation will apply to a particular State, similarly, the Governor under paragraph 5 of the Fifth Schedule can apply specified laws to a Scheduled area.
The Bihar Regulation I of 1951 is an instance of a valid piece of legislation 246 emanating from the legislative authority in its plenitude of power and there is no aspect of delegated or conditional legislation.
The question which next arises for consideration is whether the applied on the relevant date of occurrence namely 13 December, J961 to the Santhal Parganas.
The was enacted in the year 1924 and it was declared to apply to the Santhal Parganas.
Prior to the Constitution the Central Acts or Federal Acts or Acts of the Dominion Legislature did not apply to an excluded or a partially excluded area unless they were declared by the Governor to apply to those areas.
After the enactment of the Constitution, Article 244 and the Fifth Schedule deal with excluded or partially excluded areas.
It was contended on behalf of the State that after the enactment of the Constitution the became applicable to excluded or partially excluded areas because first it was an existing law and secondly the restriction under section 92 of the Government of India Act, 1935 which required a specific declaration of the Governor to apply any legislation to the areas in question was no longer operative.
Article 372(l) of the Constitution enacts that the law in force in the territory of India immediately before the commencement of the Constitution is to continue in force until altered or repealed or amended by a competent legislature or other competent authority.
Explanation I to Article 372 is that law in force in the Article shall include a law passed or mad& by the legislature or other competent authority in the territory of India before the commencement of the Constitution not withstanding that it or parts of it may not be then in operation either at all or in particular area or, areas.
The contention on behalf of the respondent that the would apply to the, Santhal Parganas on the ground that it is an existing law is not acceptable.
Article 372 in clause (1) thereof enacts that subject to the other provisions of this Constitution all the laws in force in the territory of India shall continue in force.
The Fifth Schedule to the Constitution relates to excluded or partially excluded areas.
The existing law in relation to the excluded areas is saved by Article 372 and Explanation I thereto in spite of operation of such laws in particular areas.
Similarly, other laws which were applicable to territories other than the excluded or partially excluded areas are saved by Article 372 Explanation 1.
Therefore, laws which were existing law in territories other than excluded or partially excluded areas would not be existing law under Article 372 in relation to excluded or partially excluded areas.
Nor would existing law for the rest of India be existing law to area in question within the meaning of paragraph 5 in the Fifth Schedule to the Constitution.
The Land 247 Customs Act, 1924 cannot therefore be said to apply to Santhal Parganas as an existing law.
The present day sources of law making in the Santhal Par ganas which are included in the Scheduled Areas are Article 244 and the provisions in the Fifth Schedule to the Constitution.
Clause 5 of the Fifth Schedule has two sub clauses.
Under subclause (1) the Governor is empowered notwithstanding anything in the Constitution to direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or shall apply to a Scheduled Area subject to such exceptions and modifications as the Governor may specify in the noti fication.
Sub clause (1) of clause 5 of the Fifth Schedule to the Constitution speaks of Acts of Parliament or of the Legislature of the State and therefore Central Acts or Provincial Acts, prior to the Constitution are not contemplated within sub clause (1) of clause 5.
Sub clause (2) of clause 5 of he Fifth Schedule confers power on the Governor to make regulations for the peace and good Government of any area in a State which is a Scheduled Area.
Under sub clause (2) the Governor has power to make laws which will include the power to apply to Scheduled Areas Central laws or Provincial laws enacted prior to the Constitution.
Prior to the Constitution section 92 of the Government of India Act, 1935 conferred power oil the Governor to make regulations for excluded and partially excluded areas which included the Santhal Parganas.
In making such regulation the Governor could repeal or amend any Central law or any Provincial Acts and the regulations were to be submitted to the Governor General for assent.
The Central or the Provincial Acts under sub section (1) of section 92 of the Government of India Act, 1935 however were not applied to excluded and partially excluded areas unless the Governor so directed.
Prior to the Government of India Act, 1935 the Governor General in Council in 1872 promulgated the regulation known as "Santhal Parganas Settlement Regulation" and section 3 of the said Regulation provided the enactments specified in the Schedule thereto which would be in force in the Santhal Par ganas.
Section 3 (2) of the Santhal Parganas Settlement Regulation of 1872 in so far as it seeks to affect future legislation would not have any force after 26th January, 1950.
In this background it appears that the and the were not made applicable to Santhal Parganas either under the Santhal Parganas Settlement Regulation of 1872 or under any notification issued under section 248 92 of the Government of India Act, 1935.
Neither the nor the has been specifically made applicable to the Santhal Parganas by any notification under sub clause (2) of clause 5 of the Fifth Schedule.
The Bihar Scheduled Laws Regulation being Regula tion I of 1951 which was promulgated under sub clause (2) of clause 5 of the Fifth Schedule for the purpose of applying certain laws to Santhal Parganas however made the Imports and Exports (Control) Act, 1947 and the Imports and Exports (Amendment) Act, 1949 applicable to Santhal Parganas.
We have already stated as to how the is made applicable to Santhal Parganas by reason of the provisions contained in the Imports and Exports (Control) Act, 1947.
Though the does not apply to Santhal Parganas we have indicated hereinafter as to how because of the application of section 6 of the , officers of Land Customs appointed under the are treated as Customs Officers having jurisdiction in the Santhal Parganas.
The Central Excise and Salt Act, 1944 was however made applicable to the Santhal Parganas by a notification dated 14 September, 1944 but the application of that Act is not in issue in the present appeal.
One of the questions in the present appeal was whether the Indian Tariff Act, 1934 applied to the Santhal Parganas.
The articles.which were seized in the present appeal, viz., cloves were dutiable articles being item 9(3) in column 3 in the First Schedule to the Indian Tariff Act, 1934.
We have already indicated as to how by reason of operation of section 3 of the Imports and Exports (Control) Act, 1947 cloves became an article the import or export of which was prohibited under section 19 of the .
No notification of application of the Indian Tariff Act, 1934 to the Santhal Parganas was shown to the High Court.
It will appear in volume 7 page 5792 of the Bihar Local Acts (1793 to 1963) published by Bharat Law House, Allahabad in the year 1966 that the Indian Tariff Act, 1894 is found to be one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872 and the Indian Tariff Act, 1894 which was repealed by the ' Indian Tariff Act, 1934 was similarly declared to be in force in the Santhal Parganas.
The Inspectors, Uma Shankar and B. N. Jha were Customs Officers engaged in public duty.
They arrested the appellant Nazir Mian under section 173 of the on a reasonable suspicion.
The Inspectors further arrested the appeallant Nazir Mian under section 178 of the .
Section 178 of the empowered the 249 A Customs Officer to seize smuggled goods under the Act.
The questions which have to be decided in the present case are: first, whether the Inspectors Uma Shankar and B. N. Jha were acting in the discharge of public duties, secondly, whether they could arrest the appellants, and thirdly, whether they could seize the cloves.
The oral evidence of Inspector Uma Shankar is that he B was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence Section.
He said that he was posted at Barharwa since the month of January, 1961 and his jurisdiction was Pakur, Dumka and Sahibganj.
He also said that his duty was the prevention of smuggling of contraband commodities.
Inspector B. N. Jha in his oral evidence 'said that he was an Inspector of Central Excise and Customs and he worked in the Preventive and Intelligence section and Pakur, Dumka and Sahibganj were within his jurisdiction of work The Imports and Exports Control Act, 1947 in sub section (2) of section 3 enacted that goods to, which sub section (1) applied would be deemed to be goods the import or export of which would be a restriction under section 19 or the sea Customs Act, 1878 and all the provisions of that Act shall have effect accordingly.
The Imports and Exports Control Act, 1947 conferred power on the Central Government to make provisions prohibiting, restricting and controlling import and export.
The Imports Control Order, 1955 was made by virtue of power conferred by section 3 of the Imports and Exports Control Act, 1947.
Schedule I Part IV item 23 of the Imports Control Order, 1955 mentions cloves within the class of goods the import of which is prohibited.
Therefore, cloves come under the prohibition of section 3 of the Imports and Exports Control Act.
1947 read with clause 3 of the Imports Control Order, 1955 and F are goods which are prohibited from being imported.
The Imports Control Order, 1955 mentions that each entry in column 2 of Schedule I to the said Order has the same meaning as specified against the said item in column 3 of the First Schedule to the Indian Tariff Act.
Schedule I to the Imports Control Order, 1955 gives in a tabular form the names of articles as also G the corresponding items to the Indian Tariff Act.
Cloves which are mentioned as item No. 23 of Schedule I of Part IV of the Imports Control Order, 1955 have the same meaning corresponding to item No.
9(3) in column 3 in the First Schedule to the Indian Tariff Act, 1934.
It, therefore, follows that cloves are goods the import of which is prohibited by the Imports and Exports Control Act, 1947 and they are dutiable goods by reason of that meaning of cloves in column 3 item No. 9 (3) of the First, ,Schedule to the Indian Tariff Act, 1934 having been attracted by the Imports Control Order, 1955.
Cloves are, pro 250 hibited goods within the Imports and Exports Control Act, 1947A and are, therefore, deemed to be prohibited under section 19 of the .
The Inspectors who arrested the appellant Nazir Mian and the other accused and seized the articles were Officers of Central Excise 'and Customs.
In the present case, there are two notifications.
The first is a notification No. 69 Cus. dated 28 September, 1951 under section 6 of the which is set out as follows : "In exercise of the powers conferred by section 6 of the (VIII of 18778) and in supersession of the Government of India in the Ministry of Finance (Revenue Division) Notification No. 71, dated the 12th August, 1950,.
the Central Government hereby appoints all the Land Customs Officers who have been appointed or may be appointed from time to time to be such under sub section (1) of section 3 of the (XIX of 1924)D to be Officers of Customs for their respective jurisdiction and to exercise the powers conferred and to perform the duties imposed on such officers by the first named Act".
The second is a notification No. C.B.R. Notification 1 ' L.Cus.
E dated 25th January, 1958 as amended by No. 8 L.Cus.
dated 117th May, 1958 under the which is setout as follows "In exercise of the powers conferred by sub sec tion (1) of section 3 of the Land Customs Act, 1924F (19 of 1924) read with the notification of the Government of India in the late Finance Department (Central Revenue) No. 5944 dated the 13th December, 1924 and in supersession of its notification No. 56 Customs, dated the 24th July, 1951 as subsequently amended, the Central Board of Revenue hereby appoints all , Deputy Collectors, Assistant Collectors,Headquarters Assistant Collectors, Superintendents, Deputy Superintendents, Inspectors, Nakedars, Supervisors, Range Officers, Assistant Range, Officers, Women Searchers, Jemadars, Petty Officers, Amaldas, Sepoys and Peons,.
including all the officers of Central Excise employed for the time being on the Central Excise or Customs Preventive intelligence work and attached to the Headquarters and the Circle; and.
Divisional Officers of the Collectorate of Central Excise, 251 Delhi, Allahabad, Patna, Shillong, Madras, Bombay and Baroda, to be Land Customs Officers within the jurisdiction of the respective Collectors of Land Customs under whom they are working '.
It will appear from the aforementioned notifications first that under section 6 of the Land Customs Officers are appointed Officers of Customs.
It is manifest the provisions of the apply, and, therefore, the Land Customs Officers are appointed Officers of Customs under the .
Secondly, the notification under the is that all the Officers mentioned therein including the Inspectors of the Central Excise employed on the Central Excise or Customs Preventive Intelligence work and attached to the Headquarters are Land Customs Officers.
The combined effect of both the notifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a 'result of the application of the .
Counsel on behalf of the appellants contended that there was no evidence to warrant the Customs Officers to arrest the appellants under section 173 of the because such an arrest could be made only if there was a reasonable suspicion in existence.
The evidence in the present case established the following facts.
First, the appellant Nazir Mian had in possession two bags of cloves and no duty was paid on those cloves.
Secondly, the appellant Nazir Mian kept the cloves.
in two bags and concealed the same in the latrine of the railway compartment.
Thirdly, the cloves were dutiable goods and there was prohibition on the import of those goods.
Fourthly, Pakur was at a distance of only 1 1 and 12 miles from the East Pakistan border.
Fifthly, cloves are not grown in India.
These circumstances indicated a reasonable suspicion and, therefore, the Officers were justified in arresting the appellant Nazir Mian under section 173 of the .
It was contended on behalf of the appellants that though under section 178 of the , the Customs Officers could seize the goods there was no notification under section 178A of the imposing restrictions on import of cloves, and, therefore.
the onus of proof could not be shifted to the appellants under section 178A of the .
The correct legal position is that in the absence of special notification under section 178A specifying goods to which the section applies, the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the .
In 252 view of the fact that in the present case the seized articles were removed by the accused it is unnecessary to deal any further with this aspect of the case because if any order were passed for return of the bags the order could not be enforced.
For these reasons, the appeal fails and is dismissed.
The appellants will surrender to the District Magistrate, Santhal Parrganas to serve the sentences.
Appeal dismissed.

summary/full:
One Nazir Mian was arrested at Pakur Railway Station in the Santhal Parganas of Bihar by two Inspectors and a constable belonging to the Central Excise Department.
The Inspectors were employed on Central Excise and Customs Prevention intelligence work.
Two bags of clove& on which duty was required to be paid under the Imports Control Order 1955, but had not been paid, were seized from the possession of Nazir mian who had locked himself inside the latrine of a railway compartment in the said station.
The arrest and seizure were effected under sections 173 and 178 of the .
Helped by certain persons, Nazir Mian escaped and the cloves were also taken away.
In the scufflee the said two Inspectors were injured, one grievously.
Alongwith four others Nazir Mian was tried in connection with the incident.
The charges against the accused included the offences of offering resistance to the lawful Apprehension of Nazir Mian and of causing hurt to a public servant in the discharge of his official duties.
Four of the accused including the three appellants were convicted by the trial Court.
The High Court dismissed their appeals.
In appeal by special leave against the judgment of the High Court the appellants contended before this Court that : (1) The did not apply to the place of occurrence and, therefore, the arrest purporting to have been, made under sections 173 and 178 of that Act and the seizure of the cloves were unlawful.
(ii) The did not apply to the place of occurrence and therefore the Inspectors were not officers of Customs who could invoke the authority of the to arrest and seize the appellant Nazir Mian; (iii) The seizure of cloves was not authorised by section 178 of the nor was the arrest authorised under section 173 of he ; (iv) Section 178A of the could not apply because there was no notification to attract the application of the said section.
HELD : (i) The was applicable to the Santhal Parganas by virtue of section 3(2) of the Imports & Exports Control Act, 1947 up.
C.I./70 16 234 which had been made applicable by the Governor to the Santhal Parganas under Bihar Regulation I of 1951.
Sub section (2) of section 3 of the Imports & Exports Control Act, 1947 enacts that goods to which any order under sub section (1) applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the and the second limb of subsection (2) of section 3 is that all the provisions of that Act (The , (1878) shall have effect accordingly.
To accede to the contention on behalf of the appellants that only section 19 of the will apply and no other provisions of the will be effective or operative will be not only to render the words "and all the provisions of that Act shall have effect" otiose but also nugatory.
When the statute enacts that all the provisions of that Act shall have effect accordingly, it will be an error to hold in spite of the language of such legislation that the provisions of the Sea Customs act shall not have effect.
the effect of bringing into an Act, the provisions of an earlier Act is to introduce the incorporated sections of the earlier Act into the subsequent Act as if these provisions have been enacted in it for the.
first time.
[242 H 250 Di All that can be said on the authority of the Madras Customs case is that if section 19 of the were repealed then the would not be attracted.
Section 19 of the has not been, repealed and was extant and is now re enacted as section 11 in the Sea and there has been corresponding change in the Imports and Exports Control Act, 1947 by reference to the Sea and section 11 thereof.
[243 H] The Collector of Customs, Madras vs Nathella Sampathu Chetty The Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd., referred to.
Re : Wood 's Estate, , applied.
Bihar Regulation 1 of 1951.
was not in excess of the Governor 's powers.
The Santhal Parganas are included in the Scheduled.
Areas dealt with in article 244 and the Fifth Schedule to the Constitution.
Paragraph 5 in the Fifth Schedule deals with laws applicable to Scheduled Areas.
Sub paragraph 2 of Paragraph 5 enacts that the Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
Under sub paragraph 3 of paragraph 5 the Governor may repeal or amend any Act of Parliament or any Act of the legislature of the state or any existing law which is for the time being applicable to the area in question.
The Bihar Regulation I of 1951 is a valid piece of legislation emanating from the legislative authority of the Governor in its plenitude of power.
The contentions s did not include the that the Governor 's power of making regulation power to apply laws and that the Bihar Regulation I of 1951 is either piece of delegated legislation or a conditional legislation, could not be accepted.
[245 B C, H] Riel vs The Queen, L.R. 10 A.C. 657, referred to.
(ii) The was not applicable to the Santha.
Parganas as an 'existing law within the meaning of article 372(1) of the Constitution.
it was also not made applicable to the Santhal Parganas by the Governor by the exercise of power under the Government of India Act or the Constitution.
Nevertheless by virtue of notification No. 6 235 Cus.
dated 28th September, 1951 under section 6 of the and notification No. CBR Notification 1.
L. Cus.
dated 25th January, 1958 (as amended in May, 1958) the two Inspector 's in the present case had authority to arrest the appellant Nazir Mian and to seize the bags of cloves in his possession.
From the said notifications it appeared that under section 6 of the Sea Customs Act, 1818 Land Customs Officers arc appointed Officers of Customs.
Secondly, the notification under the is that all the officers mentioned therein including the Inspectors of Central Excise employed on the Central Excise or Customs Prevention Intelligence Work and attached to the Headquarters are Land Customs Officers.
The combined effect of both the notifications is that the Inspectors of Central Excise in the present case were Land Customs Officers and Officers of Customs as a result of the application of the .
[246 H; 251 B D] (iii) (a) The import of cloves was prohibited under the Imports Control Order 1955 made under section 3 of the Imports & Exports Control Order 1947.
They were also dutiable goods under the Indian Tariff Act, 1934 which was applicable to the Santhal Parganas being one of the Acts mentioned in the Schedule to the Santhal Parganas Settlement Regulation, 1872.
Being prohibited goods under the Imports & Exports Control Act, 1947 cloves are deemed to be prohibited under section 19 of the .
[250 Al (b) The evidence in the present case established the following facts.
First, the appellant Nazir Mian had in possession two bags of cloves and no duty was paid on those cloves.
Secondly the said appellant kept the cloves in two bags and concealed the same in the latrine of the railways compartment.
Thirdly, the cloves were dutiable goods and there was prohibition on the import of those goods.
Fourthly, the place o f occurrence was at a distance of only 11 & 12 miles from the East Pakistan border.
Fifthly, cloves are not grown in India.
These circumstances indicated a reasonable suspicion and, therefore the Officers were justified in arresting the appellant Nazir Mian tinder section 173 of the .
1251 E] (iv) In the absence of special notification under s, 178A of the specifying goods to which the section applies, the onus of proof under that section cannot be placed on persons whose goods are seized for violation of other provisions of the .


judgement:
Civil Appeals Nos. 1782 and 1783 of 1966.
Appeals from the judgment and decree dated October 6, 1964, of the Kerala High Court in Appeal Suit No. 569 of 1963.
O.P. Malhotra and J.B. Dadachanji, for the appellant (in C.A. No. 1782 of 1966) and the respondents (in C.A. No. 1783 of 1966).
M.C. Chagla and A.G. Pudissery,.
for the respondents (in C.A. No. 1782 of 1966) and the appellants (in C.A. No. 1783 of 1966).
The Judgment of the Court was delivered by Hegde, J.
These connected appeals by certificate arise from the decision of the.
High Court of Kerala in Appeal Suit No. 569 of 1963 on its file.
Civil Appeal No. 1782 of 1966 is filed by the plaintiff in the suit and Civil Appeal No. 1783 of 1966 is filed by the second defendant (who shall hereinafter be referred to as the defendant), who is contesting this appeal.
The suit was for specific performance on the basis of an oral agreement alleged to have been entered into on 9.9.1121 (Malayalain Era.) between the plaintiff and the 1st defendant who died very soon after the filing of the suit.
The suit was contested by the second defendant, his widow.
The trial court decreed the suit as prayed for but in appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sate deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field at its east for a sum of Rs. 11500/ .
923 Originally the plaintiff was the owner of the suit properties.
He sold the same to the 1st defendant on 9.9.1121 (Malayalam Era) under Exh.
According to the plaintiff at the time of the execution of P 1, there was an oral agreement between him and the 1st defendant whereunder the 1st defendant agreed to reconvey the properties sold for the very price it was sold whenever the plaintiff calls up.on him to reconvey them.
The suit from which these appeals arise has been rounded on the basis of the said agreement.
The 1st defendant died even before he could file his written statement in the case.
Before his death he had gifted the suit properties by means of a registered deed in favour of the defendant.
She denied the agreement pleaded in the plaint but on the other hand she stated that just before his death her husband had agreed to sell to plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11500 but due to the illness of her husband the sale in question could not be effected.
She proceeded further and averred as follows in paragraph 10 of her written statement.
"This defendant has been asked by the 1 st defendant before his death that even after his death the properties in item No. 1 (in the plaint schedule which are the subject matter of the contract) as mentioned in paragraph 7, except the nilam on the eastern part thereof, should be assigned to the plaintiff for a consideration of Rs. 11500 and accordingly this defendant is willing to give such property as mentioned above to the plaintiff." After the defendant filed her written statement, the plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the defendant nor did he inform the court that he was ready and willing to accept the agreement pleaded by the defendant or that he was willing to perform his part of that agreement.
The suit proceeded on the basis of the agreement pleaded in the plaint.
The 1st question that arises for decision is whether the agreement pleaded in the plaint is true.
The burden of proving that agreement is naturally on the plaintiff.
The agreement in question as mentioned earlier is said to be an oral agreement.
Therefore the plaintiff 's task is all the more difficult.
The sale deed Exh.
P. 1 proceeds on the basis that it evidences an outright sale.
It does not either specifically or by implication lend support to the case put forward by the plaintiff.
On the other hand it records the following condition stipulated by the vendor: "Subject to the stipulation that during my life time the schedule properties shall not be mortgaged or assigned to anyone else without my knowledge and consent, I completely convey 'and surrender to you all my 924 remaining rights and possession, and the properties are given to your possession on receipt of the sale consideration of Rs. 24,500.
" From this clause it is clear that the plaintiff conveyed all his rights, title and interest in the suit properties to the vendee subject to the aforementioned stipulation.
It is not necessary to consider whether the restriction in question is a valid one.
Even if we assume that the same is valid, it does not support the plaintiff 's case.
On the other hand, by implication it negatives his case.
At best the clause referred to above merely confers on the vendor a right to preempt.
Hence by implication it negatives the plaintiff 's case that there was an agreement to reconvey the suit properties.
The plaintiff has not given any satisfactory explanation why the contract relating to reconveyance was not incorporated in the sale deed.
To explain this important omission he has examined P.W.2, who.
claims to be a document writer of considerable experience.
He claims that the document in question was written by one of his assistants.
His evidence is to the effect that the vendor and the vendee wanted to incorporate the agreement as regards re conveyance in Exh.
P.1 itself but he advised them that it could not be done.
This is a strange legal advice.
This evidence is on the.
face of it unbelievable.
There is also no satisfactory explanation why the alleged agreement was not reduced into.
writing.
In support of the alleged agreement reliance was tried to be placed on Exh.
P 2, which is said to be a document signed by the first defendant after the present suit was filed and before his death.
The High Court was unable to accept the genuineness of this document.
It opined that this document must have been got up by the plaintiff with the assistance of P.W. 7, his brother.
From the High Court 's judgment we find that though the document contains hardly few lines, for completing the same as many as three different types o.f ink had been used.
The original document has not been called for and therefore we have to proceed on the basis that the.
observations made by the High Court are correct.
The very recitals in the document show that it is a suspicious document.
For all these reasons we are unable.
to place any reliance on this document.
It may be again emphasized at this stage that this document has come into existence after the institution of the present suit.
The principal witnesses who are examined in support of the oral agreement pleaded in the case are P.Ws.1, 2 and 7.
We have already referred to the evidence of P.W. 2.
He does not appear to us to be a reliable witness.
P.W. 1 is no other than the plaintiff himself.
P.W. 7 is his brother.
P.W. 1 has no children and P.W. 7 is his nearest heir.
Therefore it is quite 925 clear that both P.Ws. 1 and 7 are interested witnesses.
Their evidence cannot carry much weight.
The story put forward by the plaintiff in the plaint is an im probable one.
ItI is true that the plaintiff and the 1st defendant are first cousins.
It is also true that their relationship was very cordial.
But if the 1st defendant could not trust the plaintiff to advance a sum of Rs. 24,000 without security as could be gathered from the plaintiff 's evidence, we fail to see why the 1st defendant should have relied on the oral assurances given by the plaintiff in the matter of reconveying the property.
From the averments made by the defendant in her written statement it does appear that when the 1st defendant was in his death bed being stricken by cancer, there was some talk about reconveying a portion of the suit properties to the plaintiff.
It may also be as held by the trial court that the suit property was worth more than Rs. 24,000 at the time of its sale.
It appears likely that neither side has come forward with the true version.
But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence.
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence.
That apart, as mentioned earlier, in this case the oral testimony adduced in support of the agreement pleaded is a highly interested one.
We do not think that the trial court was justified in relying on that testimony for granting the decree prayed for.
The trial court itself observed in the course of its judgment (para 12) that "there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the 1st defendant".
This finding alone should have been sufficient to non suit the plaintiff.
Therefore we agree with the High Court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint.
This takes us to the decree passed by the High Court in respect of plaint item No. 1.
This decree is purported to have been passed on the basis of the admission made by the defendant.
It may be noted that the agreement pleaded by the defendant is wholly different from that pleaded by the plaintiff.
They do not refer to the same transaction.
plaintiff did not at any stage accept the agreement pleaded by the defendant as true.
The agreement pleaded by the plaintiff is said to have been entered into at the time of the execution of Exh.
P 1 whereas the agreement put forward by the defendant is one that is said to have been arrived at just before the filing of the suit.
The two are totally different agreements.
The plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of defendant.
A 926 suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code.
In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he has applied to the defendant specifically to perform the agreement pleaded by him but the defendant has not done so.
He must further plead that he has been and is still ready and willing to specifically perform his.
part of the agreement.
Neither in the plaint nor at any subsequent stage of the suit the plaintiff has taken thos pleas.
As observed by this Court in Pt.
Prem Raj vs The D.L.F. Housing and Construction (Private) Ltd. and anr.(1) that it is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract and in the absence of such an allegation the suit is not maintainable.
The High Court purported to rely on the decision of this Court in Srinivas Ram Kumar vs Mahabir Prasad and ors.
(2) in support of the decree passed by it.
We do not think that the ratio of that decision is applicable to the facts of this case.
Therein the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30,000 towards the price and had been put into possession in part performance of the contract but the defendant pleaded that the amount of Rs. 30,000 was received as a loan and the plaintiff was put into possession only to facilitate the payment of interest.
This Court accepted the plea of the defendant and negatived the claim of the plaintiff and refused to decree the specific performance prayed for by the plaintiff but at the same time this Court thought that on the peculiar facts of that case, it was appropriate to grant a decree in favour of the plaintiff for Rs. 30,000 which admittedly remained unpaid.
As seen earlier before a decree for specific performance can be given the plaintiff has to plead and satisfy the court about his willingness to perform his part of the contract.
Hence in our opinion the decision in Srinivas Ram Kumar 's case (2) does not bear on the facts of the present case.
For the reasons mentioned above we dismiss Civil Appeal No. 1782 of 1966 and allow Civil Appeal No. 1783 of 1966.
In the result the suit from which these appeals arise stands dismissed.
Now coming to the question of costs, on the facts and circumstances of this case we think it is appropriate to direct the parties to bear their own costs throughout.
Our reasons for doing so are these: It is proved that the suit properties were sold to the 1st defendant at a very low price.
There must have been some good (1) ; (2) ; 927 reason for doing so but the parties have not chosen to place the true version before the Court.
It is also proved that the 1st defendant before his death was willing to resell a portion of the suit properties.
He had directed his wife to resell the major portion of item No. 1 of the plaint schedule to the plaintiff for a consideration of Rs. 11,500 though its price at that time is proved to be much more than Rs. 11,500.
As seen earlier, the defendant was willing to sell item No. 1 in the plaint schedule to the plaintiff for Rs. 11,500.
She expressed her readiness to do so in her written statement.
She is evidently not willing to stand by that offer now because of the enormous rise of price of properties in recent times.
Mr. M.C. Chagla, learned Counsel for the defendant told us at the time of the hearing that the property concerned in the defendant 's appeal is now worth over a lac of ' rupees.
That appears to be the reason why the defendant is backing out of the offer made by her in her written statement.
All that one need say is that all is not well with defendant 's ease either.
Civil Appeal 1782/66 dismissed.
Civil Appeal 1783/66 allowed.

dataset_name: IN-Abs

summary/full:
The plaintiff as original owner of the suit properties sold the same to the 1st defendant who.
was husband of the 2nd defendant.
According to the plaintiff apart 'from the written sale deed there was an oral agreement between him and the 1st defendant whereunder the latter agrees to reconvey the properties sold at the same price whenever the plaintiff called upon him to do so.
The suit was filed for specific performance of the said oral agreement.
The 1st defendant died even before he filed his written statement.
Before his death he had gifted the suit properties to his wife, the 2nd defendant.
In her 'written statement the 2nd defendant denied the agreement pleaded in the point but stated that just before his death her husband had agreed to sell t6 plaintiff item No. 1 of the suit property less one acre of paddy field for a sum of Rs. 11,500 but due to his illness the sale could not be effected.
She reiterated the said offer in her written statement but the plaintiff did not accept it and the suit proceeded on the basis of the agreement pleaded in the plaint.
The trial court decreed the suit as prayed for.
In appeal the High Court did not accept the agreement pleaded by the plaintiff but still granted a decree directing the defendant to execute a sale deed in favour of the plaintiff in respect of item No. 1 of the plaint schedule properties less one acre of paddy field for a sum of Rs. 11,500.
Both the parties appealed to this HELD.
: (i) The burden of proving the oral agreement was on the plaintiff.
The sale deed on the face of it evidenced an outright sale.
The stipulation ha it that the purchaser would not mortgage or assign the properties to anyone else during the vendor 's lifetime went against the plaintiff 's case inasmuch as it only gave the vendor a right to preempt. ] 'here was no satisfactory explanation why such an important thing as the agreement to re convey was made orally and not reduced to writing.
[923 G,924B] It appeared likely in the present case that neither side had come forward with the true version.
But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be: established by convincing evidence.
Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence.
[925 D E] On the evidence adduced by him the plaintiff had failed to prove the agreement pleaded in the plaint.
[925 F] (ii) The High Court was wrong in passing the decree in respect of plaint item No. 1 on the basis of the admission of the 2nd defendant in her written statement.
The plaintiff did not at any stage accept the 922 agreement pleaded by the defendant as true.
The agreement pleaded by the plaintiff in his plaint and that pleaded by the defendant in her written statement were two totally different agreements.
The plaintiff did not plead at any stage that he was ready and willing to.
perform the agreement pleaded in the written statement of defendant.
A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code.
Before a decree for specific performance can be given the plaintiff has to.
plead and satisfy the court about his willingness to perform his part of the contract.
[925 G926 B] Pt.
Prem Raj vs The D.L.F. Housing and Construction (P) Ltd. & Anr., ; , applied.
Srinivas Ram Kumar vs Mahabir Prasad & Ors., ; , distinguished.
(iii) Since the parties had not laid the true version before the court and the defendant had refiled from the offer made by her in her written statement it was a case in which it was appropriate to direct the parties to bear their own costs throughout.
[926 H]


judgement:
on No. 492 of 1954.
Petition under article 32 of the Constitution for the enforcement of Fundamental Rights.
B. Sen, I. N. Shroff and B. P. Singh for the petitioner.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India (G. N. Joshi 770 P.A. Mehta and P. G. Gokhale, with them) for the respondents.
October 21.
The Judgment of the Court was delivered by MEHR CHAND MAHAJAN C.J.
This is a petition under article 32 of the Constitution of India for the enforcement of fundamental rights under articles 31(1) and 19(1)(f) of the Constitution and for the issue of writs in the nature of mandamus and/or certiorari and for suitable directions restraining the respondents from interfering with the petitioner 's properties in violation of his fundamental rights.
The petition arises in these circumstances.
The petitioner, along with his brothers, used to carry on the business of toddy and liquor vendors.
In addition to this, one of the brothers used to run a bus service and dealt in cotton and money lending also.
All the brothers owned extensive properties, both agricultural and non agricultural.
Though prior to the assessment year 1926 27 all the brothers were assessed to income tax as a Hindu undivided family, since then up to the year 1946 they were assessed separately on account of a partition alleged to have been made between them.
In December, 1946, the Income tax Officer commenced proceedings against them under section 34 on the ground that the case of partition set up by them was not correct and as a matter of fact there had been no partition between them and they were carrying on business jointly.
As a result of these proceedings an assessment under section 34 was made on the four brothers jointly, treating them as an association of persons, for the year 1942 43.
Similar assessment proceedings were taken against them in respect of the years 1940 41, 1941 42 and 1943 44.
In December, 1947, the Central Government, under the bona fide belief that the petitioner 's brothers had made huge profits during the war and had evaded tax, made five references to the Income tax Investigation Commission under section 5(1) of the Taxation on Income (Investigation Commission) Act, 1947.
Reference No. 175 concerned all the brothers as an association of persons while the other four references related 771 to the brothers individually.
As a result of the pro ceedings before the Investigation Commission, the Commission made a report to the Central Government on the 26th of September, 1952, estimating the amount of escaped income at Rs. 16,79,203 between the year,% 1940 41 and 1948 49.
In pursuance of this report the Central Government passed an order under section 8(2) of the Taxation on Income (Investigation Commission) Act directing that the assessment proceedings be taken under the Indian Income tax Act and Excess Profits Tax Act, 1940, as well as under the Business Profits Tax Act, 1947, against Messrs Jamkhandi Bros. as an association of persons with a view to assess or reassess the income that had escaped assessment according to the report of the Investigation Commission.
In accordance with these orders the Income tax Officer commenced proceedings against Messrs Jamkhandi Bros. as an association of persons.
On the 30th November, 1953, various assessment orders were passed by the Income tax Officer assessing the petitioner under the Income tax Act and the Excess Profits Tax Act.
Proceedings were then taken against the petitioner for recovery of the tax assessed by the Income tax Officer and in those proceedings the properties of the petitioner in the District of Belgaum were attached for payment of the dues and one of his properties comprising of about 12 plots of land was sold by public auction under the provisions of the Bombay Land Revenue Code.
On the 20th September, 1954, the present application was preferred under the provisions of article 32 of the Constitution.
It has perhaps been made under the impression that the decision of this Court in Suraj Mal Mohta vs A. V. Visvanatha Sastri and Another (1) has application to the facts and circumstances of this case as well and that relief can be obtained against the assessment orders which have become final, by taking proceedings under article 32 of the Constitution.
In the petition it was alleged that the attachment and sale of the petitioner 's properties was illegal and violates the petitioner 's fundamental rights under articles 31(1) and 19(1)(f) of the Constitution.
It was also alleged (1) ; 772 that the proceedings before the Income tax Investigation Commission after the coming into force of the Constitution were illegal as being in contravention of articles 14 and 20(3) of the Constitution and that in view of the decision of this Court in Suraj Mal Mohta vs A. V. Visvanatha Sastri and Another (supra) proceedings under the Taxation on Income (Investigation Commission) Act, 1947 were discriminatory and that the references made by the Central Government under section 5(1) are not based on a proper classification.
It was prayed that this Court may be pleased to issue a writ in the nature of mandamus and/or certiorari or such other directions as may be appropriate to quash the assessment orders made in pursuance of the order of the Central Govern ment under section 8(2) of the Taxation on Income (Investigation Commission) Act, 1947, and to restrain the respondents from attaching and selling or interfering in any manner with the properties of the petitioner.
From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September, 1952, more than two years before this petition was presented in this Court.
The assessment orders under the Income tax Act itself were made a against the petitioner in November, 1953.
In these circumstances we are of the opinion that he is entitled to no relief under the provisions of article 32 of the Constitution.
It was held by this Court in Ramjilal vs Income tax Officer, Mohindergarh (1) that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under article 32.
In view of this decision it has to be held that the petition under article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circum stances that have arisen it would not be just and proper (1) 773 to direct the issue of any of the writs the issue of which is discretionary with this Court.
When this position was put to Mr. Sen, the learned counsel for the petitioner, he very fairly, and, in our opinion, rightly conceded that it was not possible for him to combat this position.
For the reasons given above this petition is bound to fail and it is accordingly dismissed with costs.

summary/full:
Held, that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected except by authority of law, clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax and as the right conferred by article 265 is not a fundamental right conferred by Part III of the Constitution, it cannot be enforced under article 32.
Ramjilal vs Income tax Officer, Mohindergarh ([1951] S.C.R. 127) followed.
Suraj Mal Mohta and Co. vs A. V. Visvanatha Sastri (A.i.R. referred to.


judgement:
Appeal No. 1361 of 1966.
Appeal by special leave from the judgment and order dated April 5, 1963 of the Madras High Court in Second Appeal No. 1287 of 1960.
Niren De, Attorney General, V. A. Seyid Muhammad, R.N. Sachthey and S.P. Nayar, for the appellant.
Lily Thomas, for the respondent.
The Judgment of the Court was delivered by Shah, J.
A.V. Narasimhalu hereinafter called "the plaintiff" imported 43 reels of newsprint 131/4" width under a bill of Entry dated July 15, 1954.
The width of the newsprint being less than 15" no import duty was payable under the Open General Licence The Assistant Collector of Customs held that the commodity imported fell within item 44 of the Customs Tariff and levied a duty of 33 3/8% ad valorem.
The plaintiff paid the duty under protest, and applied for refund of the duty relying upon a decision of the High Court o.f Madras in writ petition No. 402 of 1954 in which it was decided that newsprint of width less than 15" was exempt from duty.
This application was rejected.
An appeal to the Collector of Customs and a revision application to the Central Board of Revenue were unsuccessful.
The customs authorities rejected the claim on the ground that the claim not having been made within three months of the date of demand was barred under section 40 of the .
The plaintiff then instituted an action in the City Civil Court for a decree for Rs. 2,669 62 against the Union of India.
The Trial Court decreed the claim holding that the claim was not barred.
In appeal the Principal Judge, City Civil Court held that the City Civil Court had no jurisdiction to entertain the suit.
In so holding he relied upon the judgment of the Judicial Committee in Secretary of State for India vs Mask & Co. (1).
In Second Appeal, the High Court of Madras reversed the judgment of the Principal Judge, City Civil Court, and restored the decree passed by the trial court.
The Union of India has appealed to this Court with special leave.
It is unnecessary to consider whether the claim is barred under section 40 of the , for, in our judgment, the Civil Court had no, jurisdiction to.
entertain the suit.
Section 188 of the , insofar as it is relevant, provides: "Any person deeming himself aggrieved by any decision or order passed b.y an officer of Customs under (1) L.R. 67 I.A. 222.
147 this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs Authority, or in such cases as the Central Government directs, to any officer of Customs not inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Central Government.
Every order passed in appeal under this section shall, subject to the power of revision conferred by section 191, be final".
Section 191 provides: "The Central Government may, on the application of any person aggrieved by any decision or order passed under this Act by any officer of Customs or Chief Customs Authority, and from which no appeal lies, reverse or modify such decision or order".
The Act is a complete code dealing with liability to pay customs duty and for obtaining relief against excessive or erroneous levy and other related matters.
The jurisdiction of the Civil Court to entertain a suit on the ground that the duty was improperly or illegally levied is excluded.
It is true that the decision or order passed under section 188 of the in appeal to the appellate authority is expressly declared final.
But on that account it cannot be held that by refusing to appeal against the decision or by refusing to claim relief in the manner provided by section 188 and section 191 of the , a party aggrieved by the order of a Customs Officer may invest the Civil Court with jurisdiction to entertain a suit.
In Mask & Company 's case(1) a firm of merchants imported a quantity of betelnuts into.
British India.
The Assistant Collector of Customs assessed them for the purposes of duty on a tariff as "boiled", rejecting the contention of the importers, that they Were "raw sliced betel nuts" subject to duty ad valorem.
The importers, appealed from the decision of the Assistant Collector to the: Collector of Customs.
The appeal was dismissed, and in revision to the Government of India the Collector 's decision was affirmed.
A suit was then filed by the importers to recover the excess amount collected from them, by levying duty upon a tariff and not ad valorem.
Before the Judicial Committee it was contended that the decision or order passed by the officer of Customs could only be challenged by an appeal under section 188 of the and jurisdiction of the Civil Court was excluded.
(1) L.R. 67 I.A. 222.
148 Alternatively it was contended that the right of appeal conferred by section 188 constituted a procedure which was alternative to procedure in the civil courts, and since the importers in that option had chosen to proceed under section 188, they were bound by that election, and were thus excluded from resort to the civil courts.
The Judicial Committee observed that adjudication as to confiscations, increased rates of duty or penalties made under the power conferred by section 182 were decisions or orders within the meaning of section 188, and that the decision of the Collector under section 188 was final and excluded the jurisdiction of the Civil Court.
The Judicial Committee did not express any opinion on the question whether prior to taking an appeal under section 188 the porters would have been entitled to resort to the civil courts.
But in our judgment it would not be open in all situations where a party who had right to appeal to refuse to resort to the procedure prescribed by the statute and to file a suit.
The express declaration in section 188 of the that the order of the Collector in appeal shall be final does not imply that a suit will lie against the decision or order of the original authority.
In a recent judgment of this Court Dhulabhai etc.
vs State Madhya Pradesh and Anr.(1) this Court set out certain principles relating to the exclusion of the jurisdiction of the Civil Court.
The propositions (1), (2), (5), (6) & (7) are relevant.
It may be observed that it was not the case that the Assistant Collector of Customs had not acted in conformity with the fundamental principles of judicial procedure, nor was it the case that the provisions of the Act were ultra vires or unconstitutional.
The Act in terms, creates a special liability and provides for determination of the right of the State to recover duty and the liability of the importer to pay duty and by the clearest implication it is provided that it shall be determined by the Tribunal so constituted.
The High Court in the judgment under appeal observed: " . the: question in these.
appeals is different, namely, whether the Collector could be said to be acting within his jurisdiction, if he, in direct disregard of the provisions of the Act and the Rules made thereunder, levied a duty upon the goods which were not liable to duty and compelled by duress as it were the importer to pay the same before taking delivery of the goods.
The result of his action was that the respective appellants had to part with certain sums of money which were collected from them under the colour of statutory power.
In such a case, a suit will undoubtedly (1) ; 149 be maintainable in a civil court by showing that the Customs authorities had excessively charged duty; it will really be a common law right to property being interfered with.
It may be that the remedy provided under section 188 of the would be available to the aggrieved importer to challenge the levy on the ground that it was either improperly made or that the duty was collected under a mistake or under duress.
But in all such cases, there will also exist a remedy under the common law in a civil Court, for the simple reason that these categories of cases will amount to a levy beyond the jurisdiction of the authority, or one made under duress, or paid by mistake.
" But an erroneous decision of the Customs Authority cannot be said to be reached without jurisdiction merely because it may be shown in some collateral proceeding to be wrong.
Normally an action of an administrative authority interfering with the right to property may be challanged by resort to a civil court, Yet in the case of a right which depends upon a statute, the jurisdiction of the civil court to grant relief may by express provision or by clear implication of the statute be excluded.
Where a statute re enacts a right or a liability existing at common law, and the statute provides a special form of remedy, exclusion of the jurisdiction of the civil court to grant relief in the absence of an express provision, will not be readily inferred.
Where, however a statute creates a new right or liability and it provides a complete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the civil court to grant relief is barred, Liability to pay a duty of custom is not a common law liability: it arises by virtue of the : in respect of any grievance arising in consequence of enforcement of that liability machinery has been provided by the Act.
Having regard to the complicated nature of the questions which arise in the determination of liability to pay duty of customs the Legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals.
An appeal lies against the order of the Assistant Collector of Customs against an order imposing duty as well as an order refusing to refund duty, and the grievance may be carried to the Central Board of Revenue.
In our judgment, the jurisdiction of the civil court is by clear implication of the statute excluded.
We, however, deem it necessary to observe that the civil courts have jurisdiction to examine cases in which the Customs Authority has not complied with the provisions of the statute or the officer of customs has not acted in conformity with the fundamental principles of judicial procedure or the Authority has acted 150 in violation of the fundamental principles of judicial procedure or he has made an order which is not within his competence or the statute which imposes liability is unconstitutional, or where the order is alleged to be mala fide.
A civil suit will lie for obtaining appropriate relief in these cases.
But the exclusion of the jurisdiction of the civil court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi judicial tribunals.
The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the civil court or by clever implication does not affect the jurisdiction of the High Court to issue high prerogative writs.
The jurisdiction of the civil court to entertain a suit challenging the validity of the imposition of the duty of customs being excluded, the plaintiff 's suit must fail.
But it must be observed that the present is a fair illustration of the administration not making a serious attempt to avoid futile litigation for small claims.
There was a judgment of the High Court of Madras on the identical question which fell to be determined.
If the plaintiff had moved the High Court in exercise of its jurisdiction under Article 226 the Union had practically no defence.
The Union could without loss of face accede to the request of the plaintiff to refund the amount collected.
The learned Attorney General stated that the Union desired to obtain a decision of this Court on the extent of the jurisdiction of the Civil Court to entertain a suit challenging the decision of the Customs Authorities, because in the view of the Law Advisers the High Court had fallen into error in enunciating the principles.
But the High Court recorded the judgment under appeal after the claim was resisted by the Union.
We are glad to record the assurance given by the Attorney General that whatever may be the decision in the appeal, the Union of India will refund the amount of tax unauthorised recovered by the Assistant Collector of Customs.
This was essentially a case in which when notice was served the Central Government should instead of relying upon technicalities have refunded the amount collected.
We trust that the Administrative authorities will act in a manner consistent not with technicalities, but with a broader concept of justice if a feeling is to be nurtured in the minds of the citizens that the Government is by and for the people.
The appeal is allowed.
The suit is ordered to be dismissed.
The order of costs passed by the High Court is however maintained.
There will be no order as to costs in this appeal.
Y.P. Appeal allowed.

summary/full:
Section 188 of the , provides for an appeal against any order of an officer of customs and the order passed in the appeal is made final subject to the. revision under section 191 of the Act.
The respondent claimed refund of customs duty paid by him under protest.
The claim was rejected.
An appeal to the Collector of Customs and a revision to the Central Board of Revenue= were unsuccessful.
The respondent instituted an action in the Civil Court for refund of the amount.
The trial court decreed the suit but the first appellate court held that the civil court had No. jurisdiction to entertain the suit.
The High Court, in further appeal, restored the decree of the trial court.
Allowing the appeal, this Court, HELD: The civil court had no jurisdiction to entertain the suit.
[146 G H] Where a statute creates a new right or liability and it provides a complete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the Civil Court.
to grant relief is barred.
Where however a statute reenacts a right or liability existing at common law, and the statute provides a special form of remedy, exclusion of the jurisdiction of the Civil Court to grant relief in the absence of an express provision will not be readily inferred.
[149 ' D F] Liability to pay duty of customs is not a common law liability; it arises by virtue of the .
In respect of any grievance arising in consequence of enforcement of that liability, machinery has been provided by the Act.
Having regard to the complicated nature of the questions which arise in the determination of liability to.
pay duty of customs, the legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals.
[149 ' F G] (ii) A civil suit will lie for obtaining appropriate relief in cases where the customs authority has not complied with the provisions of the statute, or the officer of customs has not acted in conformity with the fundamental principles of judicial procedure or the authority has acted in violation of the fundamental principles of judicial procedure or has made an order which is not within his competence or the statute which imposes liability is unconstitutional or the order is alleged to.
be mala fide.
[149 F G] (iii) The exclusion of the jurisdiction of the Civil Court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi judicial tribunals.
[150] Dhulabhai etc.
vs State of Madras Pradesh & Anr.
A.I.R. , followed.
Secretary of State for India vs Mask & Co. L.R. 67 I.A. 222, referred to. 146