judgement:
vil Appeal No. 1660 (NT) of 1974.
From the Judgment and Order dated 23.12.1971 of the Allahabad High Court in Income tax Reference No. 53 of 1968.
H.K. Puri for the Appellants.
Miss A. Subhashini and H.B. Rao for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is from the judgment and order of the Allahabad High Court dated 23rd December, 1971 in the Income Tax Reference.
The assessee is a limited company under the Indian Companies Act and derived its income from the manufacture and sale of sugar and confectionery.
The assessment for the assessment year 1958 59 was completed under the Indian Income Tax Act, 1922.
The Income Tax Officer in the said assessment, inter alia made the following additions besides others in respect of the following items: (i) For cane cost Rs.48,500/ (ii) For shortage in cane Rs.67,500/ (iii) For salary of outstation staff Rs.21,700/ The assessee did not challenge the said assessment order passed by the Income Tax Officer in so far as the additions of the above amounts in appeal or otherwise.
It was the case of the assessee that it did not appeal because it wanted to keep good relations with the revenue although, according to the assessee, the above additions made by the Income Tax Officer were totally unjustified and illegal.
On 14th March, 1963 the Income Tax Officer issued notice under section 274 read with section 271 of the Income Tax Act, 1961 (hereinafter called 'the Act ') in respect of the assessment year 1958 59 for imposing penalty.
The assessee company demurred.
After considering the reply the 696 Inspecting Assistant Commissioner on 1st October, 1964 imposed a penalty of Rs.70,000 under section 274 read with section 271 of the Act holding inter alia that there was concealment of income to the tune of Rs.1,37,700 and the maximum penalty of Rs.1,06,317 was imposable in law but a sum of Rs.70,000 was imposed as penalty considering the facts and circumstances of the case.
The assessee preferred an appeal against the said order.
The Tribunal after considering the entire matter, reduced the penalty to Rs.5,000.
The Tribunal referred the three following questions, two at the instance of the assessee and one at the instance of the revenue, to the High Court for determination: "1.
Whether, on the facts and in the circum stances of the case, the Tribunal was correct in holding that the provisions of section 271 of the Income Tax.
Act, 1961 are applicable to the present case; 2. 'Whether, there is any material to warrant the finding that the assessee company had concealed the particulars of its income or deliberately furnished inaccurate particulars thereof within the meaning of section 271(2) of the Income Tax Act, 1961; and 3.
Whether, on the facts and in the circum stances of the case, the Tribunal is correct in reducing the penalty under section 271(1)(c) from Rs.70,000 to Rs.5,000?" The High Court was of the opinion that the third question did not clearly bring out the matter in dispute between the parties and as such it was reframed as follows: "Whether, on the facts and in the circum stances, the finding of the Tribunal that the assessee had not concealed income to the extent of Rs.67,500 and Rs.21,700 within the meaning of section 271(1)(c) of the Indian Income Tax Act, 1961, is correct in law?" The High Court noted that the Income Tax Officer had made certain additions and disallowed certain expenses and of the various amounts disallowed only three amounts were required to be considered by the High Court namely; (i) inflation in price of sugar cane of an amount of Rs.48,500, (ii) excess shortage claimed for cane 697 Rs.67,500 and (iii) salary of out station staff of loading contractors of Rs.21,700.
So far as the first question is concerned the High Court held in favour of revenue and answered the question in the negative.
The answer to this question is no longer in dispute here.
So far as the second question is concerned the High Court answered the question in the nagative and in favour of the assessee.
There is no dispute about that question too, in so far as there is no appeal by the revenue.
As regards the third question re framed as mentioned hereinbefore, it was answered by the High Court in the affirmative and in favour of the revenue.
The assessee has come up in appeal to this Court challenging the correctness of that answer.
In this appeal we are con cerned with the correctness or otherwise of the answer given to this question and the appeal must be confined to the correctness of the answer given to the third question as reframed.
The Income Tax Officer in his assessment order out of which this penalty proceedings arose noted that there were several disallowances in various accounts and he mentioned altogether 19 items totalling Rs.3,01,787.
All these were on account of disallowances.
Main item was shortage in cane and the amount was Rs.67,500.
Another items was salary of out station staff and the amount was Rs.21,700.
There was also addition of Rs.48,500 on account of inflation in the price of sugar cane.
The Inspecting Assistant Commissioner in his order noted, inter alia three items, namely, (i) inflation in price of sugar cane Rs.48.500 (ii) excess shortage claimed for cane Rs.67,500 and (iii) salary of outstation staff of loading contractors Rs.21,700.
It was found so far as the last item was concerned that the amount was disal lowed being a false debit.
It was found that the assessee attempted to understate the income by debiting a false expenditure of Rs.48,500.
The Inspecting Assistant Commis sioner noted that actual shortage was 21,143 Mds.
valuing Rs.26,429 while the assessee had claimed Rs.1,34,661 for shortage at 2%.
The excess claim was also indicative of the real position that the shortage was fictitiously claimed at a high figure.
Faced with these facts the assessee eventual ly surrendered Rs.67,500.
Therefore, the Inspecting Assist ant Commisioner held that the assessee was certainly reduc ing the income by debiting false claims for excess shortage and the action amounted to intentional concealment.
Salary amounting to Rs.21,700 paid by the contractors to their staff working at out centres was debited in the books and while it was claimed that the staff working at these centres were actually employed by the company, on investigation the claim was found to be false.
In this connec 698 tion a reference was made to the statement of one Shri Kedar Nath Kanodia.
He had stated that he had employed five per sons at the out centres and there was no employee of the mill working at the centres.
The mill had kept there neither any clerk not any chowkidar.
He confirmed that he had paid the employees out of his own funds and had categorically denied that they were the employees of the mill or that they were paid by it.
In his statement he further stated that although the staff was actually paid by him yet the compa ny 's accountant had obtained their signatures on salary sheets and thus inflated the expenses by raising false debit in the salary account.
This procedure was followed in re spect of other contractors also.
The salary bill was thereby inflated by Rs.21,700.
The Inspecting Assistant Commissioner therefore, held that the assessee had concealed income to the extent of Rs.21,700.
He had also come to the conclusion that the cane purchases noted against these last entries were false and fictitious and the quantity covered by these entries was 31, 561 Mds.
valuing at Rs.48,500.
This was a false debit.
The assessee debited the three items of Rs.48,500, Rs.67,500 and Rs.21.700.
The assessee admitted that these items represented income.
It was also borne out by records that the amounts were not included in the return by the company.
The offence of deliberate under statement of income was, thus clearly established according to the In specting Assistant Commissioner.
He, therefore, found that the tax sought to be evaded came to Rs.70,914 and the maxi mum penalty worked out to Rs. 1,06,37 1.
Having regard to the facts and circumstances of the case, he imposed a penal ty of Rs.70,000.
In appeal the Income Tax Tribunal was of the view that not much turned upon the fact that the assessee agreed to the additions of the amounts in the assessment.
So far as the reliance placed upon Kanodia 's statement by the Inspect ing Assistant Commissioner was concerned, it had no rele vance or bearing to the facts of the assessment year in question.
He was not the contractor employed by the assessee in the year of account.
He came in only for a later year.
One Avinash Chand was the contractor in the year in ques tion.
He had specifically stated that he was responsible for shortages.
He had also admitted that there was staff main tained by the mill at the centre at which he was the loading contractor.
In fact he had gone to the extent of and stated as to what staff was maintained in that centre; there was a man in charge of the centre, a weighment clerk, a cane clerk and three to four chowkidars.
He had also stated that they were not his employees.
According to the Tribunal in these circumstances the assessee could very well have argued against the addition of the two sums, 699 namely, Rs.67,500 and Rs.21,700.
But the assessee as we have noted had agreed to the amounts being included.
The Tribunal was of the view that the mere fact that the amounts were agreed to be taken into account by the assessee did not ipso facto indicate any criminality in its action to conceal any portion of the income.
The Tribunal found that so far as Rs.48,500 was concerned in the inflation in the price of sugar cane, the previous history was against the assessee.
It had agreed to the similar additions in the earlier years 1955 56 and 1956 57 the Tribunal noted.
From the above facts, it was seen that the penalty was warranted in similar amount for this year also, the Tribunal noted.
Taking into consideration that the sum involved against this year was Rs.48,500 the tribunal considered that a smaller penalty was imposable.
The Tribunal accordingly imposed a total penalty of Rs. 5,000.
The High Court reiterated that the onus of proving concealment was on the revenue because the proceedings for penalty were penal in character.
In that view of the matter the High Court was of the opinion that so far as Rs.48,500 was concerned it was not proved that there was any deliber ate concealment.
So far as the other two amounts of Rs.67,500 and Rs.21,700 were concerned, it was contended that the High Court noted the history of the order of the Inspecting Assistant Commissioner and the circumstances of the case and the High Court was of the view that the Tribu nal had not at all considered the fact that the value of the shortage was only Rs.26,429.
According to the High Court, the Tribunal had brushed aside the fact that the assessee had agreed to the addition of this amount.
According to the High Court, the Tribunal had not set aside the finding of the Inspecting Assistant Commissioner that the assessee surrendered the amount of Rs.67,500 when it was faced with facts which clearly established concealment.
The assessee according to the Inspecting Assistant Commissioner had surrendered the amount only after the Income Tax Officer had conclusive evidence in his possession that the amount repre sented its income.
In other words, what the High Court sought to state was that acceptance by the assessee was material to give proper weight to judge the criminality of the action which according to the High Court was not given.
The High Court highlighted that so far as Rs.67,500 was concerned only on being faced with facts from which there could possibly be no escape from the inference that the amount represented his income, that the assessee agreed to its inclusion.
The High Court was of the view that the Tribunal was in error in brushing aside consideration of these aspects while considering the question of concealment.
In respect of the addition of Rs.21,700 the Inspecting Assistant 700 Commissioner had relied upon the statement of Kedar Nath Kanodia as also the fact that the assessee admitted that this item represented its income.
The Tribunal did not place reliance upon the statement of Kedar Nath Kanodia.
It, however, omitted to take into account the fact that the assessee had admitted that these items represented its income.
The High Court was of the view that such admissions were made by the assessee but the Tribunal had not properly appreciated that aspect.
Therefore in respect of these two items the High Court was of the view that the Tribunal was not right in holding that the assessee was not guilty of any concealment.
So far as question No. 2 was concerned which dealt with Rs.48,500 the High Court confined itself to the disallowance in respect of purchase of cane.
So far as this question was answered in favour of the assessee and there is no challenge by the revenue, it is not material any more.
The High Court came to the conclusion that the finding of the Tribunal in respect of the concealment of Rs.48,500 was not justified in law.
It was urged before us that as the second question which was in general form has been answered in favour of the assessee, the third question as reframed could not have been answered otherwise.
We are unable to accept this contention.
As evident from the discussion by the High Court, the High Court confined to second question with regard to disallowance in respect of purchase of cane that amounted to Rs.48,500.
So, therefore it cannot be said that in view of the answer given to the second question, the third question was no longer open.
The second question was confined to only Rs.48,500.
So far as whether there was justification for the answer given to the reframed third question or was proper or not has to be judged on the basis as to how far the High Court in a reference could interfere with a finding of fact and transform the same into a question of law on the ground that there has been non consideration of all relevant facts.
The law on this point is quite settled.
The question was considered by this Court exhaustively in Sree Meenakshi Mills Limited vs Commissioner of Income tax, Madras, where this Court reiterated that findings on questions of pure fact arrived at by the Tribu nal were not to be disturbed by the High Court on a refer ence unless it appeared that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this was so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribu nal.
In other words, such a finding could be reviewed only on the ground that there was no evi 701 dence to support it or that it was perverse.
When a conclusion had been reached on an appreciation of a number of facts established by the evidence, whether that was sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole.
Where an ultimate finding on an issue was an inference to be drawn from the facts found, on the application of any principles of law, there would be a mixed question of law and fact, and the inference from the facts found was in such a case, a question of law.
But where the final determination of the issue equally with the finding or ascertainment of the basic facts did not involve the appli cation of any principle of law, an inference from the facts could not be regarded as one of law.
The proposition that an inference from facts was one of law was, therefore, correct in its application to mixed questions of law and fact, but not to pure questions of fact.
In the case of pure questions of fact an inference from the facts was as much a question of fact as the evidence of the facts.
In the instant case there is a finding of fact and unless it could be said that all the relevant facts had not been considered in a proper light, no question of law arises.
In our opinion, the Tribu nal took into account all the relevant facts.
The Tribunal had been accused by the High Court of not taking into con sideration the fact that the assessee had admitted these amounts in the assessment.
To admit that there has been excess claim or disallowance is not the same thing as delib erate concealment or furnishing inaccurate particulars.
At least in the background of the law as it stood at the rele vant time that was the position.
There have been some changes subsequentiy which we have not noticed for the present purpose.
In Omar Salay Mohamed Sait vs Commissioner of Income tax, Madras, 1, this Court held that the In come tax Appellate Tribunal was a fact finding tribunal and if it arrived at its own conclusions of fact after due consideration of the evidence before it the court could not interfere.
It was necessary, however, that every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence on record before it.
The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there were any circumstances which required to be ex plained by the assessee, the 702 assessee should be given an opportunity of doing so.
In this case, the Tribunal had taken into consideration the fact that the assessee had admitted the additions as its income when faced with non disclosure in assessment proceedings.
The High Court accused the Tribunal of not considering the time when the assessee admitted the additions.
We find that it was duly considered by the Tribunal.
We find that the assessee admitted that these were the income of the assessee but that was not an admission that there was deliberate concealment.
From agreeing to additions it does not follow that the amount agreed to be added was concealed.
There may be hundred and one reasons for such admissions, i.e., when the assessee realises the true position it does not dispute certain disallowances but that does not absolve the revenue to prove the mens rea of quasi criminal offence.
In Udhavdas Kewalram vs Commissioner of Income tax, Bombay City 1, , the Court held that the Income tax Appellate Tribunal performed a judicial function under the Income tax Act and it was invested with authority to determine finally all questions of fact.
The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its findings on all contentions raised by the asses see and the Commissioner in the light of the evidence and the relevant law.
The Tribunal was undoubtedly competent to disagree with the view of the Appellate Assistant Commis sioner, but in proceeding to do so, it had to act judicially i.e. to consider all the evidence in favour of and against the assessee.
An order recorded on a review of only a part of the evidence and ignoring the remaining evidence could not be regarded as conclusively determinative of the ques tion of fact raised before the Tribunal.
It is for the Income tax authority to prove that a particular receipt is taxable.
If, however, the receipt is accepted and certain amount is accepted as taxable, it could be added but it was not accepted by the assessee, however, that it hard deliber ately furnished inaccurate particulars or concealed any income.
In our opinion, the Tribunal has properly considered all the evidence in the instant case.
In Rameshwar Prasad Bagla vs Commissioner of Income tax, U.P., , this Court again reiterated that it was for the Tribunal to decide questions of fact, and the High Court in a reference under section 66 of the Act as at that time could not go behind the Tribunal 's findings of fact.
The High Court could only lay down the law applicable to the facts found by the Tribunal.
The High Court in a reference under section 66 of the Act, as at that time could, however, go into the ques tion as to whether the conclusion of the Tribunal on a question of fact was based upon relevant evidence.
If the High Court found that there was no such evidence to support the finding of fact of the Tribunal, those circumstances would give rise to a question of law and 703 could be agitated in a reference.
Here in the instant case that is not the position.
This Court again reiterated that it was also well established that when a Tribunal acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based on conjectures, surmises and suspicions and partly on evidence, then in such a situation an issue of law arose and the finding of the Tribunal could be interfered with.
That is not the position here.
In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions.
The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the asses see.
The High Court further observed that the time of admis sion was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal.
That is also not correct.
The Tribunal had made additions during the assess ment proceedings.
In any event that would be appreciation of evidence in a certain way, unless in such misappreciation which amounted to non appreciation no question of law would arise.
Non appreciation may give rise to the question of law but not mere misappreciation even if there be any from certain angle.
Change of perspective in viewing a thing does not transform a question of fact into a question of law.
In the instant case we are of the opinion that in pre ferring one view to another view of factual appreciation, the High Court transgressed the limits of its jurisdiction under the Income tax reference in answering the question of law.
In the premises, we are of the opinion that the High Court was in error in so far as it held that the Tribunal had acted incorrectly.
We are further of the opinion that the reframed question must be answered in the affirmative and in favour of the assessee.
The appeal is allowed and the judgment and order of the High Court in so far as answer to the question No. 3 is concerned is set aside.
The assessee is entitled to the costs of this appeal.
P.S.S. Appeal al lowed.

summary/full:
The assessee company, which derived its income from the manufacture and sale of sugar and confectionery, was as sessed for the years 1958 59 by the Income Tax Officer under the Income Tax Act, 1922 by making additions of Rs.48,500 for cane cost, Rs.67,500 for shortage in cane, and Rs.21,700 for salary of outstation staff.
The assessee did not chal lenge the said assessment order.
Later in the year 1963 the Income Tax Officer issued notice under section 274 read with section 271 of the Income Tax Act, 1961 in respect of the assessment year 1958 59 for imposing penalty.
Before the Inspecting Assistant Commissioner the assessee admitted that these amounts, which were not included in the return by the compa ny, represented income.
On finding that there was deliberate understatement of income he imposed a penalty of Rs.70,000.
On appeal the Tribunal held that the mere fact that the amounts were agreed to be taken into account by the assessee did not ipsofacto indicate any criminality in its action to conceal any portion of the income, and that the assessee could very well have argued against the additions of the two sums, namely, Rs.67,500 and Rs.21,700.
As regards the sum of Rs.48,500 it found that the assessee had agreed to similar addition in the earlier years and so the penalty was war ranted in similar amount for this year and taking into consideration that the sum involved was Rs.48,500, it con sidered that a smaller penalty of Rs.5,000 was imposable.
The High Court took the view that the onus of proving concealment was on the Revenue because proceedings for penalty were penal in character, and held that so far as the sum of Rs.48,500 was concerned it was not proved that there was any deliberate concealment, that the Tribunal had not set aside the finding of the Assistant Inspecting Com 693 missioner that the assessee surrendered the amount of Rs.67,500 when it was faced with facts which clearly estab lished concealment, that the assessee in fact had surren dered the amount only after the Income Tax Officer had conclusive evidence in his possession that the amount repre sented its income, that acceptance by the assessee was material to give proper weight to judge the criminality of the action which in its opinion was not given, and that the Tribunal omitted to take into account the fact that the assessee had admitted that the amount of Rs.21,700 repre sented its income.
In the appeal by special leave on the question as to how far the High Court in a reference could interfere with a finding of fact and transform the same into a question of law on the ground that there has been non consideration of all relevant facts.
Allowing the appeal, HELD: 1.1 In an income tax reference a finding on a question of pure fact could be reviewed by the High Court only on the ground that there was no evidence to support it or that it was perverse.
If the High Court found that there was no such evidence, those circumstances would give rise to question of law and could be agitated in a reference.
[700G 701A, 702H 703A] 1.2 When a conclusion has been reached on an apprecia tion of a number of facts established by the evidence, whether that is sound or not must be determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole.
Where an ultimate finding on an issue is an inference to be drawn from the facts found, on the application of any principles of law, there would be a mixed question of law and fact, and the inference from the facts found in such a case would be a question of law.
But where the final determination of the issue equally with the finding or ascertainment of the basic facts did not involve the application of any principle of law, an infer ence from the facts could not be regarded as one of law.
The proposition that an inference from.
facts is one of law is, therefore, correct in its application to mixed questions of law and fact, but not to pure questions of fact.
In the case of pure questions of fact an inference from the facts is as much a question of fact as the evidence of the facts.
[701A D] In the instant case, it is not said that the Tribunal had acted on material which was irrelevant to the enquiry or considered material 694 which was partly relevant and partly irrelevant or based its decision partly on conjectures, surmises and suspicions.
It took into account all the relevant facts in a proper light in rendering a finding of fact.
Therefore, no question of law arises.
[703BC, 701DE] Sree Meenakshi Mills Limited vs Commissioner of Income tax, Madras, ; Omar Salay Mohamed Sait vs Com missioner of Income tax, Madras, ; Udhavdas Kewalram vs Commissioner of Income tax Bombay City 1, and Remeshwar Prasad Bagla vs Commissioner of Income tax, U.P., , referred to.
2.1 The High Court was wrong in saying that proper weight had not been given to all the evidence and admissions made by the assessee.
The Tribunal had taken into considera tion the fact that the assessee had admitted the additions as its income when faced with non disclosure in assessment proceedings.
The time when the assessee admitted the addi tions was also considered.
But to admit that there has been excess claim or disallowance is not the same thing as delib erate concealment or furnishing inaccurate particulars.
There may he hundred and one reasons for such admissions, i.e., when the assessee realises the true position it does not dispute certain disallowances but that does not absolve the Revenue to prove the mens rea of quasi criminal offence.
[703BC, 702AB, 701A, 702BC] 2.2 It is for the Income tax authority to prove that a particular receipt is taxable.
If however, the receipt is accepted and certain amount is accepted as taxable, it could be added.
But in the instant case, it was not accepted by the assessee that it had deliberately furnished inaccurate particulars or concealed any income.
[702EF] 3.
The High Court observed that the time of admission was not noted by the Tribunal and this fact had not been properly appreciated by the Tribunal.
That is not correct.
The Tribunal had made additions during the assessment pro ceedings.
In any event that would be appreciation of evi dence in a certain way, unless in such misappreciation which amounted to non appreciation no question of law would arise.
Nonappreciation may give rise to the question of law but not mere misappreciation even if there he any from certain angle.
Change of perspective in viewing a thing does not transform a question of fact into a question of law.
[703CD] The High Court in preferring one view to another view of factual 695 appreciation in the instant case, has therefore, trans gressed the limits of its.
jurisdiction under the Income Tax Reference in answering the question of law.
[703F]


judgement:
N: Civil Appeal No. 2114 (N) of 1972.
From the Judgment and decree dated 16.7.1971 of the Kerala High Court in Appeal Suit Nos. 183, 195 and 249 of 1966.
G. Viswanatha Iyer, P.K. Pillai and N. Sudhakaran for the Appellant.
T.S. Krishnamoorthy Iyer, T.S. Padmanabhan, T.T. Kunhi kannan, section Balakrishnan, Irfan Ahmed and Ms. Lily Thomas for the Respondents.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
This appeal by Special Leave is against the judgment and decree dated July 16, 1971 passed by the High Court of Kerala in Appeal Suit Nos. 183, 195 and 249 of 1966.
618 The Appellant is the plaintiff and respondents are defendants 1 to 34 in Original Suit No. 35 of 1961 of the Sub Court, Alleppey, Kerala State.
It is a suit for parti tion in which the plaintiff claims 1/33 share in the plaint properties.
The plaintiff and defendants 1 to 33 are members of an undivided Malayala Brahmin illom.
They are the de scendants of one Vishnu Embran.
(referred to hereinafter as Vishnu (Senior)).
The relationship of the parties with Vishnu (Senior) is set out in geneological table annexed to the common judgment of the High Court.
Suffice it to state here that Vishnu (Senior) had three sons: Kesavan, Krishnan and Narayanan.
The plaintiff is the grandson of Kesavan.
One of the sons of Kesavan was given the name of his grand father.
To avoid confusion, we may call him as Vishnu (Junior).
Vishnu (Senior) did not remain with the members of his illom.
When he was 17, he took some properties of his illom for maintenance and moved out of his native village.
He settled at a place called Chambakulam.
There he was earning by performing Iswara Sevas like Santhi ceremonies and Pari karmam works in temples.
In the course of time he acquired some properties.
Vishnu (Senior) who went out to eke his livelihood at 17, reached 71.
He then thought of peacefully retiring.
He wanted that his children after his death should not quarrel over the properties.
With their full consent, he executed exhibit P. 1, a partition deed dated October 3, 1074 M.E. corre sponding May 15, 1889 A.D. Thereunder the properties ac quired by him were divided into four shares described in the deed as Schedules A, B, C & D.
He gave schedule A to Kesa van, Schedule B to Krishnan, Schedule C to Narayanan and Schedule D to his grandson Vishnu (Junior).
These schedules should not be confused with the plaint Schedule properties.
Plaint A Schedule consists of property given to Vishnu (Senior) from his original illom for the purpose of his maintenance.
Plaint B Schedule consists of properties under A and D Schedules in exhibit P. 1.
The other schedules in the plaint are not much relevant for this case.
So they are not referred to.
The case of the plaintiff, to put it shortly is that plaint B schedule properties have been acquired out of the income from Plaint A Schedule and hence they are also the illom properties in which he is entitled to a share on Per Capita basis.
Defendants 1 to 10, 24 to 26 and 29 to 33, supported the plaintiff.
Defendants 11, 13, 16 to 21, 22 and 27 contested the suit.
The case of the contesting defendant is that Vishnu (Senior) had no surplus in 619 come from plaint A Schedule properties and the acquisitions made by him which were the subject matter of division under exhibit P. 1 were his separate properties.
The trial court accepted the case of the plaintiff.
It held that parties are governed by Marumakkathayam Law.
Plaint A Schedule properties are illom properties.
Vishnu (SeniOr) could get surplus income therefrom.
That available surplus was utilised for purchasing properties dealt with under exhibit P. 1.
The said properties are, therefore, the illom properties which are available for partition.
The Court also said that in any event, the parties by their subsequent conduct appear to have treated the properties as illom properties.
Accordingly, it passed a preliminary decree for partition on Per Capita basis.
Against the said decree there were appeals and Cross Objection before the High Court.
The main question urged before the High Court related to the nature of the Plaint B Schedule properties.
The High Court on appraisal of the oral and documentary evidence held as follows: There is no acceptable evidence to show what were the properties allotted to Vishnu (Senior) for his maintenance when he left his illom, or the income therefrom.
There is no material to prove that the Plaint A Schedule properties were given to Vishnu (Senior) for his maintenance.
Nor there is evidence to establish that the Plaint B Schedule properties were acquired with the aid of surplus income from Plaint A Schedule properties.
With regard to properties allotted to Vishnu (Junior) under exhibit P. 1 and his subsequent conduct to treat the properties as joint family properties, the High Court ob served: "The point is, whether there was any intention on the part of Vishnu (Junior) to treat the properties as illom properties.
It is no doubt, a principle of Hindu Law that where a co parcener throws his self acquisitions into the common hotchpotch with the volition that the self acquisition should become joint family properties they will assume the charac ter of joint family properties.
It is doubtful whether this principle of Hindu Law can be applied to the parties here.
As already stat ed, there is no evidence that Vishnu (Junior) had the volition to throw D Schedule proper ties into the common hotchpotch." 620 In other words, it was observed firstly, there was no intention on the part of Vishnu (Junior) to treat his properties as illom properties; Secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law could be applied to the parties.
With these conclusions, the High Court reversed the decree of the trial court but it passed a preliminary decree in regard to plaint A Schedule and some other properties as under: "As plaint A Schedule was allotted only for the maintenance of Vishnu (Senior) the posses sory interest in the properties comprised therein and attributable to the share of Kesavan would devolve on the sons of Kesavan.
As regards B Schedule properties excluding the properties comprised in the D Schedule in exhibit P. 1 they being the self acquisitions of Vishnu (Senior) will be divided equally among the sons of Kesavan.
The D Schedule properties in Ext.
P. 1 comprised in the Plaint B Sched ule being the absolute properties of Vishnu (Junior), namely defendants 11 to 21.
The income from plaint A Schedule which is at tributable to the share of Kesavan and the Plaint B Schedule properties except the income from D Schedule in Ext.
P. 1 will be distrib uted among the sons of Kesavan equally.
The income from the D Schedule properties in Ext.
P. 1 and included in the Plaint B Schedule will be given to the legal representatives of Vishnu (Junior).
" Before we consider the contentions urged before us, it will be better to clear the mental cobweb as to the law applicable to Malayala Brahmins.
The trial Court said that they are governed by Marumakkathayam Law.
The High Court did not say anything specific.
It appears to have doubted the applicability of the principles of Hindu Law to them.
A question of this nature should not have been kept in doubt.
As a matter of fact no point that comes for consideration should be kept in doubt by Courts.
The litigants come to Courts for decisions and not for obtaining doubtful opin ions.
The Court, therefore, should not be a prisoner of indecision.
The clarity and promptness in decision making are the need of the hour.
That would go a long way to reduce the docket explosion.
Fortunately, for us the problem presents little diffi culty, in view of the stand taken by Counsel on both sides.
Our attention has been drawn to the decision of the Kerala High Court in Kunji Amma 621 Narayani Amma vs Dhathri Antherjanan, There it was observed at page 158: "On behalf of the plaintiff respondent, the learned Advocate General argued that the principles of Hindu Law are not applicable and that the case should be guided by rules of Maramakkathayam Law.
In Travancore it has been held from very early times that the Malabar Brahmins are governed by principles of Hindu Law as modified by local custom (6 T.L.R. 143, 19 T.L.R. 241, 34 T.L.R. 262, 19 T.L.J. 441) in Parmeswaran Narayanan vs Nangeli Antharaja nam a decision of the Royal Court of Appeal of Travancore, and Narayanan Narayan roo vs Kunjikutty Kutty and Others, 20 T.L.R. 65 F.B. it was held that unless Malayala Brahmins can be shown to have deviated in any respect from the interpretation put upon old texts by modern Hindu Sages and adopted dif ferent practices, they should be held bound by Hindu Law as now understood and acted upon elsewhere.
The main object of the Malayala Brahmin Act III of 1106 was to make provision for better management of tarwards, to define and limit the power of Karnavan, to improve the rights of the junior members and to lay down the rules of intestate succession in respect of their self acquired properties.
Appropriate provisions were made in the Act to achieve these objects.
We do not feel justi fied in holding that the plaintiff and 1st defendant are governed by principles of Maru makkathayam law, merely because such safe guards as are found in Marumakkathayam law have been incorporated in the Malayala Brahmin Act.
" No argument has been addressed before us that the view taken in the above case is incorrect.
It can, therefore, be stated and indeed not disputed that Malayala Brahmins are governed by Hindu Law, unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any.
Some of their rights have now been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of 1958).
The Act provides for the family management and parti tion of illom properties among Nambudiri Brahmin Community.
Section 13 of the Act confers right on a member of illom to claim partition on Per Capita basis.
The law being thus clarified, we may now turn to the conten tions 622 urged by Shri Vishwanatha, learned counsel for the appel lant.
He urged that the High Court proceeded on the wrong assumption that there is no proof that the plaint A Schedule properties are illom properties that were given to Vishnu (Senior) for his maintenance.
We think the Counsel is right.
That also seems obvious and causes no difficulty.
In fact, it was admitted by all the defendants (see para 19 of the trial court judgment) that the Plaint A Schedule is common illom properties which were in possession of Vishnu (Senior) under a maintenance arrangement.
There can, therefore, be no doubt or dispute on this aspect of the matter.
The question next to be considered is whether plaint B Schedule or the properties dealt with under Ext.
P. 1 are also illom properties.
They are undisputedly the acquisi tions made by Vishnu (Senior) from time to time.
They could be regarded as illom properties provided it is established that they have been acquired with the aid of illom proper ties.
That of course is the case put forward by the plain tiff.
But the relevant evidence on record is scanty.
The High Court was, therefore, justified in stating that there is no acceptable evidence produced in the case to support the plea of the plaintiff.
The matter also becomes plain if we turn to the terms of Ext.
P. 1 on which Shri Krishna Murthy Iyer for the contest ing respondents mainly depended.
It is an ancient deed, executed at an undisputed point of time.
The deed at the beginning states that all the properties divided thereunder were acquired in the name of the father "with the assets obtained by the personal efforts and improvements of mine and my children.
" It means out of the personal exertions of the father and sons.
The plaintiff himself has stated that Vishnu (Senior) was doing Iswara Sevas in temples like Santhi Ceremony and Parikarmam works.
It is said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong.
But the income earned by any member of a illom from such practice would not become the joint family property.
It would be separate property of the individual.
So too the properties purchased out of such income.
It cannot become joint family property.
The posi tion, however, may be different if a member earns from such practices which exclusively belong to the joint family.
Another significant recital in Ext.
P. 1 may now be noticed.
It provides that the properties were divided into four shares after taking into consideration the efforts made by each party to acquire the movable and immovable proper ties.
It means the division was as per 623 contributions made by each party.
If the properties were illom properties, this recital has no place in the deed.
The deed does not refer to undisputed illom properties, that is the plaint A Schedule.
It is a deed of partition.
If the properties acquired by Vishnu (Senior) were also regard ed as illore properties, there was no good reason for him to remain silent in respect of the possessory right of the plaint A Schedule.
He ought to have, in the context, re ferred to it as to who should be in possession and what he should do about the income therefrom.
Above all the deed finally provides that the parties shall enjoy with absolute rights the properties allotted in the respective shares.
These indications clearly go to show that the properties dealt with under exhibit P. 1 were the self acquisitions of Vishnu (Senior).
We thus agree with the conclusions of the High Court though not for all the reasons stated.
In the result, the appeal fails and is dismissed with costs.
N.P.V. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
The plaintiffs great grandfather executed a partition deed exhibit P. 1 under which the properties acquired by him were divided into four shares as described in Schedules A, B, C & D and distributed to his sons and grandsons.
The plaintiff claimed in a suit for partition that plaint B schedule properties consisting of properties in Schedules A plaint A schedule and hence they were also the illom proper ties in which he was entitled to share on per capita basis.
Defendants 1 to 10, 24 to 26 and 29 to 33 supported his case.
Defendants 11, 13, 16 to 21, 22 and 27 contended that the plaintif 's great grandfather had no surplus income from plaint A schedule properties and the acquisitions made by him which were the subject matter of division under exhibit P. 1 were the separate properties.
The trial Court decreed the suit and held that parties were governed by marumakkathayam Law and Plaint A schedule properties were illom properties, that the plaintiff 's great grandfather could get surplus income therefrom which was utilised for purchasing properties dealt with under exhibit P. 1 and, therefore, the illom properties were available for partition, and that, in any event, the parties by their subsequent conduct appeared to have treated the properties as illom properties and passed a preliminary decree for partition on per capita basis.
The matter was taken in appeal to the High Court.
Cross Objection was also filed.
The High Court held that there was no acceptable evidence to show as to what were the proper ties allotted to the original testator for his maintenance when he left his illom or the income there 616 from and that there was no material to prove that the plaint A schedule properties were given to him for maintenance; nor was there evidence to establish that the plaint B schedule properties were acquired with the aid of surplus income from plaint A schedule properties.
With regard to properties allotted to the testator 's grandson under exhibit P. 1 and his subsequent conduct to treat the properties as joint family properties, it held that firstly, there was no intention on the part of the testator 's grandson to treat his properties as illom properties, and secondly, even if he had such an intention it would be doubtful whether the principle of Hindu Law could be applied to the properties.
In appeal before this Court, it was urged that the High Court proceeded on the wrong assumption that there was no proof that the plaint A schedule properties were illom properties that were given to the plaintiffs great grandfa ther for his maintenance.
Dismissing the appeal by special leave, this Court, HELD: 1.
Malayala Brahmins are governed by Hindu Law unless they can be shown to have deviated in any respect and adopted different practices, like local customs, if any.
Some of their rights have now been regulated by the Kerala Nambudiri Act, 1958 (Act 27 of 1958) which provides for the family management and partition of illom properties among Nambudiri Brahmin Community and Section 13 confers right on a members of illom to claim partition on per capita basis.
[621F G] 2.
Iswara Sevas in temples like Santhi Ceremony and Parikarmam works are said to be the hereditary profession of Malayala Brahmins and the illom to which the parties belong.
But the income earned by any member of an illom from such practice would not become the joint family property.
It would be separate property of the individual.
It cannot become joint family property.
The position, however, may be different if a member earns from such practices which exclu sively belong to the joint family.
[622F G] 3.1 In the instant case, there is no doubt that the plaint A schedule properties are common illom properties which were in possession of the testator under a maintenance arrangement.
The plaint B Schedule properties or properties dealt with under exhibit P. 1 are illom properties and they are acquisitions made by the testator from time to time.
They could be regarded as illom properties provided it is estab lished that they have been acquired with the aid of illom properties.
But 617 the relevant evidence on record is scanty.
The High Court was, therefore, justified in stating that there was no acceptable evidence produced in the case to support the plea of the plaintiff.
[622B, C D] 3.2 exhibit P. 1 is an ancient deed executed at an undisput ed point of time.
The terms of the deed indicate that all the properties divided thereunder were acquired in the name of the father out of the personal exertions of the father and his sons, that the properties were divided into four shares taking into consideration the efforts made by each party to acquire the movable and immovable properties, and that the parties shall enjoy with absolute rights the properties allotted in the respective shares, which clearly go to show that the properties dealt with under exhibit P. 1 were the self acquisitions of the testator.
[622E, H, 623C] 4.
Litigants come to Courts for decisions and not for obtaining doubtful opinions.
The Court, therefore, should not be a prisoner of indecision.
Clarity and promptness in decision making are the need of the hour.
That would go a long way to reduce the docket explosion.
[620G] Kunji Amma Narayani Amma vs Dhathri Antherjanan, , referred to.


judgement:
Civil Appeal No. 5(NT) of 1975.
From the Judgment and Order dated 15.9.
1971 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5324 of 1970.
Prithvi Raj, Mrs. Rekha Joshi and Ashok K. Srivastava for the Appellants.
Manoj Swarup, 'Ms. Lalita Kohli and Pramod Swarup for the Respondent.
The Judgment of the Court was delivered by 759 SABYASACHI MUKHARJI, J.
The question involved in this appeal is whether the respondent herein M/s. Kasturi Lal Hat Lal is liable to the State of Uttar Pradesh for payment of the Central Sales Tax in respect of the transactions of sale of coal.
The Sales Tax Officer in this case passed an order making the respondent liable for the payment of tax on certain transactions during the period from 1st October, 1965 to 31st March, 1966 amounting to Rs.9,08,548.81 and tax liability was imposed at the rate of 2% thereof amounting to Rs. 18,170 98.
The Sales Tax Officer found that the assessee carried on business in coal.
The Sales Tax Officer noted that the Bilties, concerning this kind of sale of coal had been prepared in the name of the dealer.
The dealer endorsed these Bilties (R.Rs) and gave these to the diverse parties in U.P.
The parties in U.P. on receiving these Bilties got the goods released.
The dealer admitted that the Bilties (R.Rs.) having been endorsed to the parties in U.P. were given to them at the time, while the goods were in the state of movement between Bihar and U.P. The bills connected with Bilties (R.Rs.) of this kind had also been prepared by the dealer and the money had been realised by the dealer from the purchasing parties.
The Sales Tax Officer was of the view that the sale of coal effected in that manner came under interstate sale and as such was liable under section 3(b) of the , by transfer of document when the goods were in movement.
It was the case of the dealer that the goods had been sold to an unregistered dealer and he too was not a registered dealer for the year 1965 66.
Therefore, there was no question of imposition of any Sales Tax.
The Sales Tax Officer did not agree with this view and imposed liability for the said Rs. 18 170 98.
Challenging the said imposition an application was moved before the High Court under Article 226 of the Constitution by the dealer.
The application was allowed and the order of assessment was set aside.
The High Court having considered the facts and circum stances of this case noted that the main contention raised on behalf of the assessee was that inasmuch as the movement of the goods had started from the State of Bihar, the tax if any, payable on such sales, was assessable in Bihar and the Sales Tax Officer, Lucknow had no jurisdiction to make the order of assessment.
The High Court in the light of Section 9(1) of the was of the view that the "appropriate State" would be the Sales Tax Officer in Bihar and as such the imposition was not possible in the manner it was done.
The assessee succeeded before the High Court on this ground.
The question for determination is whether that is so? 760 The High Court noted that in the previous case of Karam Chand Thapar and Bros. (Coal Sales) Ltd. vs The Sales Tax Officer, Moradabad and others, (Civil Miscellaneous Writ No. 4356 of 1969) the High Court had taken the same view on more or less identical facts on 24th of July, 1970.
We were told at the Bar that in the said matter leave had been granted under Article 136 of the Constitution by this Court.
We wanted to know whether the matter had been disposed of by this Court and if so what was the fate of the same and had adjourned this appeal on this account.
Neither the assessee nor the revenue has been able to enlighten us on this point.
Under the (hereinafter called 'the Act '), Section 2(a) stipulates that the "appro priate State" means (i) in relation to a dealer who has one or more places of business situate in the same State, that State; (ii) in relation to a dealer who has places of busi ness situate in different States, every such State with respect to the place or places of business situate within its territory.
On the other hand clause (b) of section 2 defines "dealer" to mean any person who carries on (whether regularly or otherwise) the business of buying and selling, in the manner indicated in sub clause (b).
It is not con fined to a registered dealer only.
Section 3 is the charging section and is in Chapter II dealing with the formulation of principles for determining when a sale or purchase of goods takes place in the course of interState trade or commerce or outside a State or in the course of import or export.
Sec tion 3 stipulates that a sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase (a) occasions the movement of goods from one State to another, or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another.
There are two explana tions to that section and explanation 1 provides that where goods are delivered to a carrier or other bailee for trans mission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee.
Explanation 2 enjoins that if the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.
Section 6 deals with the liability to tax on inter State sales.
Section 6(1) provides that subject to the other provisions contained in the Act, every dealer is liable to pay tax under the Act on all sales effected by him in the course of inter State trade or com merce during any year on and from the date so notified.
Sub section (1A) of section 761 6 provides that a dealer shall be liable to pay tax under the Act on sale of any goods effected by him in the course of inter State trade or commerce notwithstanding that no tax would have been leviable (whether on the seller or the purchaser) under the sales tax law of the appropriate State if that sale had taken place inside that State.
Subsection (2) of section 6 stipulates that notwithstanding anything contained in sub section (1) or sub section (1A), where a sale of any goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effected by transfer of documents of title to such goods to the Government or to a registered dealer other than the Government, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under the Act.
Sub section (2) of section 6 provides that no such subsequent sale shall be exempt from tax under that sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time or within such further time as that authority may, for sufficient cause, permit, (a) a certificate duly filled and signed by the registered dealer from whom the goods were purchased containing the prescribed particulars in the prescribed form obtained from the pre scribed authority; and (b) if the subsequent sale is made (i) to a registered dealer, a declaration referred to in clause (a) of sub section (4) of section 8, or (ii) to the Government, not being a registered dealer, a certificate referred to in clause (b) of sub section (4) of section 8.
Sub section (1) and sub section (2) of section 9 of the Act are material for our present purpose and read as follows: "9(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or commerce, whether such sales fail within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of subsection (2), in the State from which the movement of the goods commenced; (2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of 762 India, assess, re assess, collect and enforce payment of taX, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty payable under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liabil ity of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindu undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third par ties, appeals, reviews, revisions, references, compounding of offences and treatment of documents furnished by a dealer as confiden tial, shall apply accordingly: Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf make necessary provision for all or any of the matters specified in this sub section.
" It is clear from the analysis of the scheme of the Act that the Central Government imposes tax and it is by the Central Government the tax is imposed for inter State sale but it is collected by the Government in accordance with the provisions of sub section (2) of section 9 of the Act in the State.
It will be clear from sub section (2) of section 9 that the "appropriate State" imposes and collects the tax on behalf of the Government of India.
The question is which is the "appropriate State" in a transaction of the nature or the type with which we are concerned Where tax on inter State sale was sought to be imposed.
In order to be a sale or inter State transaction the sale must occasion the move ment of goods.
Here in the instant case, it appears that there were Railway receipts which were endorsed in favour of the parties in U.P.
It is by that endorsement that title was transferred to the purchases and that transaction occasioned the movement of the goods, in other words, caused inter State sales to take place, namely, the sale which occasions the movement of goods from one State to another from the State of Bihar to the State of U.P. Counsel for the revenue sought to urge at one point of time that as the railway receipts were endorsed in U.P. in favour of different 763 parties such a sale would not be an inter State sale that would have occasioned the movement of goods.
If that is the position here which counsel for the revenue sought to urge then a tax on such sales as an internal sale might have been levied under the U.P. Sales Tax Act.
But that would not be the case of sale on a transaction which occasions the move ment.
For this purpose section 9 provides for the collection and levy by the "appropriate Government".
The "appropriate Government" means in relation to a dealer who has one or more places of business situate in the same State, that State or in relation to a dealer who has places of business situate in different States, every such State with respect to the place or places of business situate within its tern tory.
It is not the position in the instant case.
It was contended on behalf of the revenue that in the State of Uttar Pradesh, the concerned Sales Tax Officer was fully competent to make the assessment.
The High Court was of the view that this argument proceeded on an omission to consider the opening words of section 2 which is the definition clause, and which makes the definitions given thereunder subject to the context.
Sub section (1) of section 9 confers jurisdiction to make the levy and collection of the tax on the State where the movement of the goods commences, and so the determinative test for discovering the jurisdiction of a particular State, in an inter State sale, is the place where the movement of the goods commences.
The words "appropriate Government" given in sub section (3) of that section must necessarily refer to the State which by section 9(1) has been conferred jurisdiction to levy and collect the tax.
The provisions must be harmonised.
It was next contended that the case of the respondent fell within the ambit of the proviso to Section 9(1).
We have.noted that the provisions of the proviso can apply only if the sale is by a registered dealer.
Here the admitted position is that the dealer is not a registered one.
It was urged on behalf of the revenue that inasmuch as section 7 of the Act required every dealer to obtain registration within the prescribed period and in the event of not obtaining such a registration, penal conse quences ensue under section 10 of the Act, the words "regis tered dealer" as used in the proviso to section 9 do not refer necessarily to a dealer who has obtained registration under section 7, but to a dealer who should have obtained such a registration.
In other words, counsel tried to import the equitable maxim by stating an argument in the manner that if registration in the facts of a particular case was compulsory then such registration should be deemed to have been made as by law enjoined that it should have been made.
Equity, it was said the maxim long time ago "looks upon a thing as done which ought to have been done.
" But that is not the position in a fiscal statute.
The fiscal statute with which we are concerned recognised registration and 764 non registration and imposes liabilities on registration and consequences for non registration.
It is not, therefore, possible to look upon a thing as done which ought to have been done for which Legislature has separately featured differently in a fiscal statute of this nature.
The Act provides machinery provisions for the imposition and reali sation of the Central Sales Tax.
It must be read in a com monsense point of view.
It is clear here that registration of dealer is impor tant because the proviso states that in the case of sale of goods during their movement from one State to another, the sale subsequent to first sale in respect of the same goods being also a sale which fell under sub section (2) of sec tion 6, the tax shall be levied and collected on a subse quent sale which had been effected by a transfer of docu ments of title to such goods by a registered dealer in the State from which the registered dealer obtained or as the case may be could have obtained the form prescribed in clause (a) of sub section (4) of section 8 of the Act in connection with purchase of such goods.
Sub section (2) of section 6 provides that where a sale of goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subse quent sale during such movement effected by a transfer of documents of title to such goods to the Government or to a registered dealer other than the government, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under this Act.
The proviso stipulates that no such subsequent sale shall be exempt from tax under this sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time, a certificate as mentioned therein.
In this case, the subse quent sale if there be any in U.P. did not occasion the movement of the goods.
It is therefore, not subject to inter State sales tax.
In that view of the matter we are of the opinion that the Sales Tax Officer in U.P. was not the appropriate au thority either to impose or collect the duty on inter State sale.
The High Court was right in the view it took.
This appeal must therefore, be dismissed with costs.
H.L.C. Appeal dis missed.

summary/full:
Section 3 of the stipulates that a sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or purchase(a) occasions the movement of goods from one State to another, or (b) is effected by a transfer of docu ments of title to the goods during their movement from one State to another.
Sub section
(1) of section 9 provides that the tax payable by any dealer under this Act on sales of goods effected by him in the course of inter State trade or com merce, whether such sales fall within clause (a) or clause (b) of section 3, shall be levied by the Government of India and the tax so levied shall be collected by that Government in accordance with the provisions of sub section (2), in the State I from which the movement of the goods commenced and sub section
(2) thereof provides that the authorities for the time being empowered to assess, re assess, collect and enforce payment of any tax under general sales tax law of the appropriate State shall, on behalf of the Government of India,assess, re assess, collect and enforce payment of tax, including any , etc.
The respondent, a dealer in coal, had effected certain transactions by endorsing Bilties (Railway Receipts made out in its name to various parties in Uttar Pradesh while the goods relating to the Bilties were in a state of movement from Bihar to Uttar Pradesh.
The bills connected with such Bilties had also been prepared by the respondent which had realised the money from the purchasing parties.
The Sales Tax Officer, Lucknow was of the view that the sale of coal effected in this manner came under inter State sale and as such was liable under section 3(b) of the .
Disagreeing with the contention of the respondent that the goods having been sold to an unregistered dealer, the respondent too being not a registered dealer during the particular year.
there was no question of imposition of any sales tax, the Sales Tax 757 Officer imposed the liability under that provision which was challenged by the respondent by a writ petition.
The High Court, allowing the petition, set aside the order of assess ment.
Dismissing the appeal, HELD: The Sales Tax Officer in Uttar Pradesh was not the appropriate authority either to impose or collect the duty on inter State sale.
[764G] (i) Sub s.(1) of section 9 confers jurisdiction to make the levy and collect the tax on the State where the movement of the goods commences, and so the determinative test for discovering the jurisdiction of a particular State, in an inter State sale, is the place where the movement of the goods commences.
The words "appropriate Government" given in sub section
(2) of that section must necessarily refer to the State which by section 9(1) has been conferred jurisdiction to levy and collect the tax.
[763D E] (ii) It is clear from an analysis of the scheme of the that it is the Central Govern ment which imposes tax on inter State sale but it is col lected by the Government in accordance with the provisions of sub section
(2) of section 9 of the Act in the State.
It is clear from sub section
(2) of section 9 that the "appropriate State" imposes and collects the tax on behalf of the Government of India.
In order to be a sale or inter State transaction the sale must occasion the movement of goods.
In the instant case, there were Railway receipts which were endorsed in favour of the parties in U.P.
It is by that endorsement that title was transferred to the purchasers and that transaction occa sioned the movement of the goods, in other words, caused inter State sales to take place, namely, the sale which occasions the movement of goods from one State to another, from the State of Bihar to the State of U.P. [762E G] (iii) The proviso to section 9(1) can apply only if the sale is by a registered dealer.
Here the admitted position is that the dealer is not a registered one.
It was urged on behalf of the revenue that inasmuch as section 7 required every dealer to obtain registration within the prescribed period and in the event of not obtaining such a registration, penal consequences ensue under section 10, the words "registered deal er" as used in the proviso to section 9 do not refer necessarily to a dealer who has obtained registration under section 7, but to a dealer who should have obtained such a registration.
In other words, counsel tried to import the equitable maxim by stating an argument in the manner that if registra 758 tion in the facts of a particular case was compulsory then such registration should be deemed to have been made as by law enjoined that it should have been made.
Equity, it was said, "looks upon a thing as done which ought to have been done".
But that is not the position in a fiscal statute.
The fiscal statute with which we are concerned recognises regis tration and non registration and imposes liabilities on registration and consequences for non registration.
It is not, therefore, possible to look upon a thing as done which ought to have been done for which Legislature has separately featured differently in a fiscal statute of this nature.
The Act provides machinery provisions for the imposition and realisation of the Central Sales Tax.
It must be read in a commonsense point of view.
[763E H; 764A B] (iv) Sub section
(2) of section 6 provides that where a sale of goods in the course of inter State trade or commerce has either occasioned the movement of such goods from one State to another or has been effected by a transfer of documents of title to such goods during their movement from one State to another, any subsequent sale during such movement effect ed by a transfer of documents of title to such goods to the Government or to a registered dealer other than the govern ment, if the goods are of the description referred to in sub section (3) of section 8, shall be exempt from tax under this Act.
The proviso stipulates that no such subsequent sale shall be exempt from tax under this sub section unless the dealer effecting the sale furnishes to the prescribed authority in the prescribed manner and within the prescribed time, a certificate as mentioned therein.
In this case, the subsequent sale if there be any in U.P. did not occasion the movement of the goods.
It is therefore, not subject to inter State sales tax.
[764D F]


judgement:
Petition No. 7667 of 1987.
IN Writ Petitions Nos.
348 352 of 1985.
(Under Article 32 of the Constitution of India).
Madan Lokur for the Petitioners.
G. Viswanatha Iyer and P.K. Pillai for the State of Kerala.
J.R. Das and D.K. Sinha for the State of West Bengal.
A.K. Ganguli and Mariarputham for the State of Himachal Pradesh.
D.N. Dwivedi, R.P. Srivastava, Mrs. Halida Khatun and Ms. A. Subhashini for the Union of India.
747 P.H. Parekh, E.K. Jose, Mrs. section Dikshit, A.V. Rangam R. Rana, M. Veerappa, B.R. Agarwal, B.D. Sharma, R.C. Verma, C.V. Subba Rao, D.K. Sinha, J.R. Dass, M.E. Sardhana, S.K. Nandy, A.S. Bhasme, A.M. Khanwilkar, P.P. Singh, R.K. Mehta, T.V.S.N. Chari, A.K. Sanghi, M.N. Shroff, D. Goburdhan, Suryakant, H.K. Puri, M.K.D. Namboodiry, B.P. Singh, K. Ramkumar, E.M.S. Anam, T,V. Ratnam, L.R. Singh, D.R. Agar wal, R.S. Sodhi, Mrs. Sushma Suri, A. Subba Rao, Prabir Choudhary, D.N. Mukharjee, S.K. Mehta, M.K. Garg, P. Par meshwarn, M. Karanjawala, L.K. Pandey, K. Rajindera Choud hary, P.C. Kapur, Pramod Swarup, T. Sridharan, Rajesh, N.M. Ghatate, Ravi P. Wadhvani, S.K. Gambhir ,and D.N. Mishra for the Interveners.
The following Order of the Court was delivered by ORDER On June 22, 1984, a three Judge Bench to which one of us was.a party delivered the judgment in a group of writ peti tions and while disapproving of the prevailing wholesale reservation on different scores in regard to admission of students into medical courses of study such as M.B.B.S. and Post Graduate specialities, proceeded.
to observe that "the very mandate of the equality clause viewed in the perspec tive of social justice would justify some extent of reserva tion based upon residence requirement within the State or on institutional preferences for students passing the qualify ing examination.
" One of the considerations perhaps the primary one in formulating the scheme for creating a nation al forum for choice of candidates for the reserved seats was the growth of a broad based national approach as against the prevailing State based reservationist policy.
The Judgment was delivered during the long vacation of the court perhaps with the fond hope that the scheme evolved by this Court could be implemented in the educational ses sion to follow.
This Court had not then assessed what magni tude the task of implementation of the scheme would involve.
When the scheme did not become operative even in the following year (1985 86), this Court directed the Government of India to convene a meeting in which Medical faculties of universities, Health Secretaries of State Governments, representatives of the Medical Council of India, the Dental Council of India, National Board of Examinations, National Academy of Medical Sciences, the Central 748 Board of Secondary Education and representatives of the Ministries of Education and Law were to participate with a view to scrutinising and giving shape to the scheme prepared by the Medical Council of India under orders of this Court and finalise every detail regarding the holding of the All India Entrance Examination for the MBBS/BDS and Post Gradu ate Courses.
This meeting was held on September 16, 1985, and after deliberations a shape was given.
The resultant scheme and certain objections came to be dealt by this Court in its order dated July 21, 1986.
By this order the reservation of 30% indicated in the main judgment was reduced to 15% of the total seats for MBBS course in each medical college or institution without taking into account any reservations validly made and this Court observed: "This new formula is in our opinion fair and just and brings about real equality of opportunity in admissions to the MBBS/BDS course without placing the students in one State in an advantageous or disadvantageous position as compared to the students in anoth er State." This Court dealt at length with the objections to the syllabus and ultimately said: "We approve of the syllabus since it has been accepted by the Medical Council of India, the Government of India and all the State Governments except the State of Maha rashtra which also did not make any submis sions to the Court at the hearing of this case.
" This Court further said : "Since as a result of the direction given by us on 2nd May, 1986, our judgment dated 22nd June, 1984, is going to be opera tive only with effect from the academic year commencing in 1987 and the first All India Entrance Examination for admission to the MBBS/BDS course would be held only in June, 1987, we would request the Education Depart ment of each State as also the Board of Sec ondary and/or Higher Secondary Education in each State to take note of this syllabus which we have approved for the All India Entrance Examination and to suitably amend its syllabus or course for the 12th year (perhaps class) 749 so as to bring it in line with the syllabus approved by us so that the students passing the qualifying examination of the 12th class may be properly equipped to face the All India Entrance Examination.
It would be desirable if a common syllabus is adopted at +2 level throughout the country so that there may be uniformity in the educational pattern and the students in various States may be able to appear in the All India Entrance Examination on a footing of equality without any undue advantage to one as against the other.
" By the same order, the Court held that the Central Board of Secondary Education would be the agency to conduct the All India Entrance Examination for admission to the MBBS course.
It was further clarified that the scheme in the main judgment as modified later is meant to apply to medical colleges or institutions maintained or run by the Union of India, any State Government or Municipal or Local Authority.
That order also directed that : "All India Entrance Examination for MBBS/BDS course shall be held once in a year which may commence at any time between 15th July and 1st August each year.
The dates indicated in paragraph 14 of the Scheme of All India En trance Examination for MBBS/BDS course are quite in order but we would add one more date, namely, that the result of the All India Entrance Examination shall be declared some time between the 15th and the 20th June.
A list of successful candidates shall be pre pared in order of merit and it shall comprise the names of as many students as the number of vacant seats available for admission plus 10% more and there shall also be a waiting list as indicated in paragraph 8 of the scheme.
There shall also be an interval of time of at least three weeks between the date of publication of the list and the date of admission to the medical colleges or institu tions covered by the scheme.
" There is an apparent mistake in the working schedule in this part of that order.
If the examination is to be held between July 15 and August 1, the result cannot be declared between the 15th and the 20th of June.
We clarify this apparent error by directing that the examination shall be held be tween 16th May and 31st May and the results shall be noti fied between 15th and 20th June.
The list of the candidates as directed in that order will be prepared within one week from the publication of the results and three weeks ' time shall be allowed to 750 intervene before actual admission starts.
By the end of August such process having been completed, actual teaching should start from the beginning of September.
In all medical colleges/institutions to which the scheme applies, teaching for MBBS/BDS course should start on the first working day of September and even those institutions which are outside the scheme might as well commence their academic sessions from September so that throughout the country there would be uniformity in that regard.
In that order, this Court further held: "The schemes of examination for admission to MBBS/BDS course . . are therefore approved by us, subject to the various modifications discussed and formulated in this judgment.
We would direct the Govern ment of India to revise these schemes in accordance with the modifications directed in this judgment and to submit such revised schemes to this Court within two weeks from today.
The Government of India will supply copies of the revised schemes to the learned advocates appearing on behalf of the State Governments, the Medical Council of India and the Bombay University so that if the revised schemes are not in accordance with the direc tions given by us in this judgment in any respect, they may be able to point out such discrepancies in the revised schemes.
" The Writ Petitions were directed to be placed for hear ing on 4th of August, 1986, for confirmation of the revised schemes prepared by the Government of India in accordance with the directions given in that judgment.
The revised schemes were not placed for finalisation before the Court in the manner directed but ultimately the concerned authorities proceeded with the making of arrangements for holding of the All India Entrance Examination.
At that stage, several applications were moved objecting to the holding of the examination in the absence of a final clearance from this Court.
In that order of 21st July, 1986, this Court had directed: "We would like to make it clear that students shall be entitled to appear at the All India Entrance Examination even if the result of the qualifying examination has not yet been declared, provided they have appeared at the qualifying examination but they cannot be admitted to the MBBS/ BDS course unless they have passed the qualifying examination.
" 751 In the advertisement which was given calling for applica tions from candidates seeking admission to the entrance examination, eligibility was limited to successful candi dates in the qualifying examination and the above direction of this Court was not reflected there.
On 30th of April, 1987, this Court made the following order: "We understand that notice of the Scheme has been served on all the States.
Some of the States have filed their objections to the proposed Scheme.
The remaining States may file their objections by June 15, 1987 latest.
The Registry of this Court will serve a copy of this Order on the Chief Secretary of each State to enable those States who have not filed objections to do so by the aforesaid date.
Those States who do not have a copy of the Scheme with them will apply to the Regis try within time for such copy.
It is distinct ly understood that no further time will be allowed to any State for filing objections.
The Union of India will file its response to those objections by July 10, 1987.
The matter shall be listed on July 14, 1987 for final disposal.
Meanwhile, the examination scheduled for May 3, 1987 shall stand postponed.
The postponement of the examination shall be notified publicly in all prominent newspapers, the All India Radio and Doordarshan immediate ly.
We also restrain the States and their respective medical Colleges from filling up 15% of the seats in the First Year M.B.B.S. Course . . . until fur ther orders.
" In compliance with the said direction, the objections filed by the various States have been placed before us which are being disposed of by this order.
The States which have filed ' their objections are the following: (1) Assam (2) Goa (3) Gujarat (4) Haryana (5) Karnataka (6) Kerala 752 (7) Orissa (8) Punjab (9) Rajasthan (10) Tamil Nadu (11) Uttar Pradesh (12) West Bengal.
Apart from these States, the Bombay Municipal Corporation has sent some objections to the scheme.
Most of the States had a common objection, namely, some more time is needed to Conveniently adapt to the switch over as contemplated by the scheme and, therefore, implementation of the Scheme.
under the main judgment should be deferred at least for two more years.
We have already pointed out that the Scheme was intended to be enforced in 1985 86 academic session and when it was deferred to the next year, the Court was hopeful that it could be introduced in the academic session of 1986 87.
We have indicated at length by quoting from the order of July 21, 1986, how under adverse circum stances it was not possible to enforce it in that academic session but the Court felt assured that the Scheme would be operative in the current academic session, namely, of 1987 88.
Even in April, 1987 when injunction against filling the 15% of the seats was directed, this Court seems to have still been hopeful of the working out the Scheme in this session.
For reasons which we shall indicate presently, it is not possible to enforce the Scheme in the current academ ic session of 1987 88.
By the time the Scheme is put into operation in 1988 89 Session, all States would have four years of notice of this judgment proposing the switchover to the Scheme.
Four years ' period is certainly sufficient notice and no one can have any occasion to feel aggrieved that there is any hustling up in the implementation of the Scheme.
We are, therefore, not impressed at all by the stand taken in the objections that more time necessary for imple menting the Scheme and, therefore, its implementation should be deferred until 1990.
The next objection which most of the States have voiced is that the syllabus curriculum of study in some of these States being different from the syllabus formulated under the orders of this Court, the students would be handicapped when taking the entrance examination.
Here again we see no force.
We have extracted at considerable length from a part of the order of July 21, 1986, where this aspect was 753 in the mind of the Court and as the Scheme syllabus was already prepared, the Court indicated that the courses of study at least for the 12th Class should be so changed as to fit into the syllabus.
The State Governments should have taken immediate steps for that purpose.
Now that we are deferring the implementation of the scheme till the next session, a gap of almost two years would have intervened between the earlier order of the Court and the time when the Scheme would be implemented.
Those States who have not taken steps to bring their syllabi in line with the Scheme sylla bus must be blamed for indifference but there is still time to remedy the situation.
Such of the students who propose to sit at the entrance examination must from now on undertake an extended study of the subjects covered by the syllabus in case some portions from the approved scheme syllabus are not covered by their own.
We do not consider this objection as a valid one for deferring the implementation of the Scheme any further beyond the coming session.
On behalf of some of the States like Rajasthan and Tamil Nadu, it was pointed out that the medium of study in the qualifying course being the State language, it would be difficult for the students to take the All India Entrance Examination in English.
This is not the first time this objection has been raised.
Even on an earlier occasion, it was claimed that the entrance examination should be held by adopting regional or State languages.
On this count, the Court had indicated the reasons and had refused to accept that request.
We do not think there is any justification to take a different view of the situation.
We would reiterate that the medium of study of the MBBS Course being in Eng lish, those students who propose to study the MBBS have got to be reasonably proficient in that language.
Besides, the manner in which the entrance ' examination would be held, does not require long answers to be written so that profi ciency in English should become an absolute necessity so far as that examination itself is concerned.
In these circum stances we do not see any real force in the objection relat ing to the language of the examination.
On behalf of the State of Assam, a plea was raised that the enforcement of the Scheme should be deferred for a period of five years.
By way of justification for such a request, it was maintained that the State has suffered badly on account of the continuous agitation for about three to four years and during this period, the educational institu tions were mostly closed and the State is still in a process of recovery.
It is a fact that the State passed through a period of agitational cloud but we do not think there would be any justification to keep the 754 State out from the national stream.
It is quite possible that for the first year or two, some inconvenience may be experienced but we are sure, the young students from Assam would maintain high spirits and would match up to the na tional standards for competition in respect of the 15% seats.
We are of the view that it would be in the interest of the State of Assam to quickly join the national stream.
A similar request has been made on behalf of the State of Punjab though on different grounds.
It is stated that the prevailing situation of law and order in Punjab being what it is, it may be difficult for students from outside Punjab to be in Punjab for pursuing their courses of studies in the MBBS and equally unfavourably would be the position for youngsters from Punjab to go out to other institutions located in different parts of the country.
We cannot shut our eyes to the realities of the situation but there is still almost a year for the Scheme to be implemented and we hope the present situation would not continue so long.
In case the present situation continues, it may be open to the State of Punjab to apply for directions of this Court when the Scheme is about to be implemented.
For the present we reject the request of the Punjab State '.
Ours is a large country and the level of education is not uniform throughout.
Undoubtedly some States are more advanced than others in the field of education.
The idea underlying the Scheme is to bring about a national cohesion and understanding and the Scheme has to be looked at from that stand point.
In introducing a Scheme of this type which requires a switch over from the prevailing pattern, there is bound to be some inconvenience.
Whether it is introduced now or two years after, would indeed bring about a feeling of anxiety and uncertainty till one gets used to it.
This is a part of human nature.
We have found a general welcome to the Scheme but an objection to its implementation.
The Scheme is intended to be implemented and if the Scheme is welcome, its implementation should also be received well.
There could, therefore, be no room for objection at the threash hold.
Now that the objections are not entertained and the Scheme is finalised and the syllabus was earlier approved all formalities for the holding of the examina tion are complete.
The next question is as to when should the examination be held.
Learned counsel for the Union of India as also the Indian Medical Council suggested that it could be done in October this year so that the candidates selected at the entrance examination could join the 1987 88 755 Session from November.
In most of the colleges, admission in respect of 85% seats has been completed and actuaL teaching has either begun or is about to begin.
By November a sub stantial part of the course would have been read.
To meet the situation, learned counsel for the Union of India sug gested that we should direct the colleges and institutions to have a supplementary course for the students admitted against.
the 15% vacancies.
In the absence of consent from the institutions, it would be difficult to work out that.
As it is, there exists a lot of confusion in the field and we do not propose to add to it by giving a direction of the type proposed.
On the other hand it would be appropriate to bring the Scheme into operation from the coming year so that all the preliminaries can be properly conducted and in regular course the students can seek admission to the 1988 89 Session.
We accordingly direct the authorities to hold the examination in the manner directed, in June, 1988.
The Union of India, the Medical Council, the Dental Council, the several States, Universities and Medical Colleges or insti tutions who are covered by the Scheme are directed to comply with these orders in time so as to give full effect to what has been said here.
We have no intention to accept any application for further modification or alteration of our orders except in regard to the State of Punjab to the extent we have indicat ed in this order.
We had put the parties appearing before us to notice of our intention and we reiterate it in our present order that no such application shall be entertained.
We hope and trust that all concerned would cooperate in giving an easy workable switch over to the Scheme to be implemented in the 1988 89 academic session so far as the MBBS/BDS course is concerned.
In view of our directing the Scheme to be operative from the 1988 89 academic session, the order of injunction passed on 20th of April, 1987, regarding the 15% seats is recalled.
The respective institu tions are now free to fill up these vacancies in accordance with their own procedure of admission.
A copy of this order shall be communicated forthwith by the Registry to the Chief Secretary of every State and or Union Territory as the case may be.

summary/full:
Pursuant to this Court 's directions regarding the reser vation of seats for admission to different courses of study such as MBBS/BDS and Post Graduate Specialities and holding of an All India Entrance Examination therefor, contained in its judgment delivered in a group of writ petitions on June 22, 1984, a Scheme was prepared by the Medical Council of india, in consultation with various authorities, and submit ted to the Court.
The Court considered the said Scheme along with objec tions and, by its order dated July 21, 1986 approved the Scheme and the syllabus with modifications and the States were directed to bring their syllabi for the 12th year in line with the syllabus approved by this Court.
The Central Board of Secondary Education was directed to hold the All India Entrance Examination.
The Scheme was intended to be implemented from the 1985 86 academic session but was de ferred to 1986 87 academic session and later to 1987 88 academic session.
The revised Schemes in accordance with the Court 's directions were not placed before the Court for confirma tion/finalisation in the manner indicated by the Court and when the concerned authorities proceeded with making neces sary arrangements for holding the All India Entrance Exami nation, several applications were moved objecting to the holding of the examination, in the absence of final clear ance from this Court.
On 30th April, 1987 this Court restrained the States and their respective medical colleges from filling up the 15% reserved seats in the first year MBBS course until further orders, and the States which had not filed their objections were directed to do so.
745 Several States filed objections.
The common objection was that more time was needed to conveniently adapt to the switch over as contemplated by the Scheme and.
therefore, implementation of the Scheme under the main judgment should be deferred at least for two more years.
Another objection was that the syllabus curriculum of study in some of the States being different from the syllabus formulated under the orders of this Court, the students would be handicapped when taking the entrance examination.
Yet another objection was that the medium of study in the qualifying course being the State language, it would be difficult for the students to take the All India Entrance Examination in English.
This Court, disposing of the objections, HELD: 1.1 Ours is a large country and the level of education is not uniform throughout.
Undoubtedly some States are more advanced than others in the field of education.
The idea underlying the Scheme is to bring about a national cohesion and understanding and the Scheme has to be looked at from that stand point.
In introducing a Scheme of this type which requires a switch over from the prevailing pat tern, there is bound to be some inconvenience.
Whether it is introduced now or two years after, it would indeed bring about a feeling of anxiety and uncertainty till one gets used to it.
This is a part of human nature.
There is general welcome to the Scheme, but there is an objection to its implementation.
The Scheme is intended to be implemented and if the Scheme is welcome, its implementation should also be received well.
There could, therefore, be no room for objec tion at the threshhold.
[754E F] 1.2 It would be appropriate to bring the Scheme into operation from the coming year so that all the preliminaries can be properly conducted and in regular course the students can seek admission to the 1988 89 session.
Accordingly, the authorities will hold the examination in June, 1988.
[755C] It may be open to the State of Punjab to apply for directions of this Court when the Scheme is about to be implemented in case the present law and order situation continues.
[754D] 1.3 As the Scheme syllabus had already been prepared, the Court had indicated in the order of July 21, 1986 that the courses of study at least for the 12th Class should be so changed as to fit into the syllabus.
The State Government should have taken immediate steps for that pur 746 pose.
Now that implementation of the Scheme is being de ferred till the next session, a gap of almost two years would have intervened between the earlier order of the Court and the time when the Scheme would be implemented.
The implementation of the Scheme cannot, therefore, be deferred any further beyond the coming session.
[753A, C] 1.4 The medium of study of the MBBS course being in English, those students who propose to study the MBBS have got to be reasonably proficient in that language.
Besides, the manner in which the entrance examination would be held does not require long answers to be written so that profi ciency in English should become an absolute necessity so far as that examination itself is concerned.
[753E F] 1.5 By the time the Scheme is put into operation in 1988 89 session, all the States would have four years of notice of the judgment proposing the switch over to the Scheme.
Four years ' period is certainly sufficient notice and no one can have any occasion to feel aggrieved that there is any hustling up in the implementation of the Scheme.
[752F] 1.6 In view of the direction that the Scheme should be operative from the 1988 89 academic session, the order of injunction regarding the 15% seats is recalled.
The respec tive institutions are now free to fill up these vacancies in accordance with their own procedure of admission.
[755F]