judgement:
Appeal No. 905 of 1968.
560 Appeal by special leave from the judgment and order dated August 25, 1966 of the Punjab High Court (Circuit Bench) Delhi in F.A.0.
132 D of 1961.
I. N. Shroff and Anand Prakash, for the appellant.
section T. Desai I. M. Lal, section R. Agarwal, Champat Rai and E. C. Agarwal, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, is directed against the judgment dated August 25, 1966 of the Circuit Bench of the High Court of Punjab at New Delhi, confirming the judgment of the District Judge, Delhi, dismissing the petition filed by the appellant under section 12 of the (Act XXV of 1955) (hereinafter called the Act).
At the conclusion of the hearing of this appeal on April 28, 1969 we had indicated our conclusion that no interference with the judgment of the High Court was called for and that the appeal is dismissed without any order as to costs.
The detailed reasons for our decision were to be given later.
Accordingly we hereby give our reasons for coming to the said conclusion.
The appellant had married the respondent according to Hindu rites on April 20, 1955.
After the marriage the parties lived together for about three years at various places such as Delhi, Alwar, Bombay and Europe and, according to the appellant, during this period the marriage was not consummated.
The appellant filed an application before the District Judge at Delhi, on March 15, 1960 under section 12 of the Act praying that the marriage between himself and his wife, the respondent, being voidable, may be annulled by a decree of nullity.
In brief, the case of the appellant was that since his marriage he had made frequent attempts to consummate it, but, due to an invincible and persistent repugnance on the part of the respondent to the act of consummation, he had failed to achieve it and, as such, the marriage had remained unconsummated.
He further averred that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the filing of his petition.
According to him the impotency of the respondent was responsible for the non,consummation of the marriage.
The respondent wife contested the application on various grounds.
She emphatically denied that she had shown any repugnance whatever to the act of consummation of marriage.
She further stated that she had lived with the appellant for about three years and had also accompanied him on his visit to England and 561 the Continent and, during that period she was always ready and prepared to give full access to the, petitioner to her person for consummating the marriage.
She specifically averred that the consummation could not take place because the appellant was suffering from some physical disability or impotency and that he never made any attempt at consummation.
She repudiated the allegation that she was either impotent at the time of the marriage of that she was impotent at the time of institution of the proceedings.
She reiterated that the appellant was physically and emotionally unable to consummate the marriage and he had made a false excuse of impotency of the wife as being the cause for non consummation of the marriage.
She further stated that the appellant was physically and sexually impotent and, consequently, unable to perform the normal sexual functions and, in view of this, he had never expressed his willingness, by his conduct or behaviour, to consummate the marriage, even though the parties lived together for a number of years and had occupied the same bed in the same room.
It will therefore be seen that while the appellant filed the application on the ground that the respondent was impotent, the respondent, in turn, had alleged that it was the appellant who was impotent.
The material provision of the Act under which the application was filed by the appellant is section 12(1) (a) which is as follows : " 12(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely (a) that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding; A party is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility '.
The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings.
In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
Both the appellant and the respondent have been examined by doctors and their oral evidence and reports are on record.
562 Though the impotency of the appellant does not strictly arise for consideration in a petition filed by him, nevertheless the trial Court framed issues even in that regard : Issues Nos. 1 and 2, which are material, are as follows : "1.
Whether the respondent was impotent at the time of the marriage and has continued to be so till the filing of the present petition ? 2.Is the petitioner impotent and consequently unable to perform the normal sexual function with the respondent ? If so, what is the effect thereof ?" The learned District Judge, after a consideration of the evidence on record, ultimately held that the appellant had failed to prove that the respondent was at any time impotent and, as such, decided issue No. 1 against the appellant.
He further held, on issue No. 2 that the facts of the case, on the contrary, showed that because of some physical or psychological cause, it was the appellant who was not able to consummate the marriage with the respondent.
In this view the petition filed by the husband appellant was dismissed.
On appeal by the appellant, the learned Judges of the Circuit Bench of the Punjab High Court differed from the finding of the trial Court on issue No. 2.
The learned Judges, however, held that it had not been proved that the appellant was impotent, but, on the material issue regarding the impotency of the respondentwife, the learned Judge were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant.
The High Court held that it had not been established by the appellant that non consummiation of the marriage was due to the impotency of the respondent.
It further held that on the state of evidence it did not believe that the respondent wife had been proved to be impotent.
The High Court also declined to believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act.
It is not really necessary for us to deal elaborately with the evidence in the case on the basis of which concurrent findings have been recorded by the District Court and the High Court, rejecting the case of the appellant that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.
Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence.
No doubt, there was a feeble attempt made by the 563 learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed.
When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.
The reliance placed by Mr. Shroff on the decision of this, Court in Earnest John White vs Kathleen Olive White( ') is misplaced.
In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or misconstrue important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court.
We are satisfied that the Courts below, in the instant case, have neither ignored nor misconstrued important pieces of evidence when they came to the conclusion that the appellant 's case, regarding the impotency of the respondent, could not be believed.
On the findings that both the appellant and the respondent were not impotent and the marriage had not been admittedly cosummated, counsel urged that the conclusion to be drawn was that such consummation was not possible because of an invincible repugnance on the part of the wife.
Counsel further urged that taking into account the practical impossibility of consummation, the application filed by the appellant should be allowed.
So far as the charge of 'invincible repugnance to the sexual act ' on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible for non consummation.
It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.
Mr. Shroff referred us to the decision of the House of Lords(2 )in G. vs G.
That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency.
It was established that the husband was potent and had made frequent attempts to consummate the marriage; but he could not succeed owing to the unreasoning resistance of the wife.
The wife was declared, on medical examination, not to suffer from any structural incapacity.
Under those circumstances the House of Lords held that the conclusion to be drawn from the evidence was that the wife 's refusal was due to an invincible repugnance to (1) ; (2) 564 the act of consummation and, as such, the husband was entitled to a decree of nullity.
This decision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect.
Mr. Shroff next relied on the decision in G. vs G.(1) holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for nonconsummation was manifest or apparent.
In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non consummation of the marriage.
The Court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also.
Accordingly the Court annulled the marriage for the reason that it was satisfied that " quoad hunc et quoad hunc, these people cannot consummate the marriage.
" The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery.
The position in the case before us is entirely different.
Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellant 's plea that the respondent had always resisted his attempts to consummate the marriage.
When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellant 's application under section 12(1)(a) of the Act.
The result is that the appeal fails and is dismissed.
There will be no order as to costs.
G.C. Appeal dismissed.

summary/full:
The appellant married the respondent according to Hindu rites on April 20, 1955.
Thereafter the parties lived together for three years but the marriage was not consummated.
The appellant filed an application before the District Judge at Delhi on March 15, 1960 under section 12 of the , praying that the marriage between himself and his wife, the respondent, being voidable may be annulled by a decree of nullity.
He averred that his wife had an invincible and persistent repugnance to the act of consummation and that she was impotent.
The District Judge and later the High Court concurrently found that neither impotence nor invincible and persistent repugnance to the sexual act were proved against the respondent.
In further appeal to this Court, HELD : (i) Though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or misconstrue important pieces of evidence in arriving at a finding, such finding is liable to be interfered with by this Court.
[563 B] Earnest John White vs Kathleen Olive White, [1958] S.C.R. 1410, referred to.
However in the instant case the Courts below has neither ignored nor mis construed important pieces of evidence when they came to the conclusion that the appellant 's case, regarding the impotency of the respondent, could not be believed.
[563 C] (ii)The case of G.v.G. could not help the appellant in the face of the High Court 's finding that 'invincible repugnance to the sexual act ' on the part of the respondent was not proved.
[563 G 564 A] (iii)The case of G.v.G. also, could not help the appellant.
In that case the Court without going into the question which party was impotent was satisfied that the couple could not consummate their marriage in the present or in the future and should not be tied up together for their lives in misery.
The position in the present case was entirely different.
Neither of the Courts below had found that the marriage could not be consummated in future and they had not also accepted the appellant 's plea that the respondent had always resisted his attempts to consummate the marriage.
[564 B 564 E] The appeal must accordingly be dismissed.


judgement:
iminal Appeal No. 6 of 1969.
Appeal from the judgment and order dated May 2, 1968 of the Delhi High Court in Criminal Revision Nos.
339 D of 1965 and 185 D of 1968.
Sardar Bahadur Saharya and Yougindra Khushalani, for the appellant.
section C. Mazumdar and Yogeshwar Dayal, for the respondents.
The Judgment of the Court was delivered by Sikri, J.
This appeal by certificate of fitness granted by the High Court of Delhi arises out of an application under section 488, Cr.
P.C. filed on September 4, 1963, in the Court of Magistrate, 1st Class, Delhi, by four children of the respondent, Nanak Chand.
The first applicant, Chandra Kishore, was born on January 23, 1942, the second, Ravindra Kishore, was born on September 23, 1943, the third Shashi Prabha, was born on February 23, 1947, and the fourth, Rakesh Kumar, was, born on September 21, 1948.
The first two applicants were thus majors at the time of the appli cation, the third though a minor at the time of the application was a major on the date of the order passed by the Magistrate, i.e., on March 26, 1965.
The learned Magistrate allowed the application and ordered the, respondent, Nanak Chand, to pay Rs. 35 p.m. to Chandra Kishore for four months only, Rs. 36 p.m. to Ravindra Kishore for 3 years only in case he continued his medicine studies, Rs. 45 p.m. to Shashi Prabha as her maintenance allowance and education expenses and Rs. 45 p.m. to Rakesh Kumar as his maintenance allowance and education expenses, from March 26, 1965.
Both the applicants and the respondent, Nanak Chand, filed revisions against the order of the Magistrate, to the Additional Sessions Judge, who dismissed the revision petition filed by the respondent, Nanak Chand, and accepted the revision petition of the 567 applicants.
The Additional Sessions Judge submitted the case to the High Court with the recommendation to enhance the maintenance allowance of the applicants in terms of the proposals made by him.
The Additional Sessions Judge observed that the maintenance under section 488 did not include the costs of college education, and therefore he did not propose to allow Chandra Kishore and Ravindra Kishore the expenses of their college education.
But taking into consideration the income of the respondent and the status of the family, the Additional Sessions Judge proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100 p.m. each as maintenance allowance until they finished their courses of M.Com.
and M.B.B.S., respectively.
He further proposed to allow to Rakesh Kumar and Shashi Prabha each a monthly maintenance allowance of Rs. 50 until Shashi Prabha was able to earn or was married, whichever was earlier, and until Rakesh Kumar was able to maintain himself. 'The High Court accepted the reference made by the learned Additional Sessions Judge, and dismissed the criminal revision filed by the respondent.
The High Court granted the certificate under article 134(1) (c) of the Constitution because there is conflict of opinion on the question of the interpretation to be given to the word 'child ' in section 489, Cr.
The learned counsel for Nanak Chand has raised three points before us : first, that section 488, Cr.
P.C. stands impliedly repealed by section 4 of the (78 of 1956) hereinafter referred to as the Maintenance Act insofar as it is applicable to Hindus; secondly, that the word 'child ' in section 488 means a minor; and thirdly, that the maintenance fixed for Chandra Kishore and Ravindra Kishore was based on wrong principles and was excessive inasmuch as expenses for education have been taken into consideration.
Section 4 of the Maintenance Act reads "4.
Save as otherwise expressly provided in this Act, (a). . (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
" The learned counsel says that section 488 Cr. P.C., insofar as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, section 20, which provides for maintenance to children.
We are unable to Sup.
Cl/69 7 568 see any inconsistency between the Maintenance Act and section 488, Cr.
P.C. Both can stand together.
The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus.
The law was substantially similar before and nobody ever suggested that Hindu Law, as in force immediately before the commencement of this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with section 488, Cr.
The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
Recently the question came before the Allahabad High Court in Ram Singh vs State(1), before the Calcutta High Court in Mahabir Agarwalla vs Gitia Roy (2) and before the Patna High Court in Nalini Ranjan vs Kiran Ran(3).
The three High Courts have, in our view, correctly come to the conclusion that section 4(b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in section 488, Cr.
On the second point there is sharp conflict of opinion amongst the High Court and indeed amongst the Judges of the same High Court.
In view of this sharp conflict of opinion we must examine the terms of section 488 ourselves.
Section 488(1) reads as follows "488(1).
If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person +to make a monthly allowance for the maintenance of his wife or such child, at such manthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
" We may also set out sub section
(8) of section 488 because some courts have placed reliance on it : "488(8).
Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child.
" The word 'Child ' is not defined in the Code itself.
This word has different meanings in different contexts.
When it is used in (1) A.I.R. [1963] All. 355.
(2) [1962] 2Cr.
L.J.528.
(3) A.I.R. [1965] Pat.
569 correlation with father or parents, according to Shorter Oxford Dictionary it means : "As correlative to parent.
The offspring, male or female, of human parents.
" Beaumont, C.J., in Shaikh.
Ahmed Shaikh Mahomed vs Fatma(1) observed : "The word "child" according: to its use in the English language has different meanings according to the context.
If used without reference to parentage, it is generally synonymous with the word 'infant ' and means a person who has not attained the age of majority. where the word 'child ' is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has no reference to age.
In certain contexts it may include descendants of more remote degree, and be equivalent to "issue".
But, at any rate, where the word "child" is used in conjunction with parentage it is not concerned with age.
No one would suggest that gift "to all my children" or "to all the children of A" should be confined to minor children.
In section 488 of the Criminal Procedure Code the word is used with reference to the father.
There is no qualification of age; the only qualification is that the child must be unable to maintain itself.
In my opinion, there is no justification for saying that this section is confined lo children who are under the age of majority.
" We agree with these observations and it seems to us that there is no reason to depart from the dictionary meaning of the word.
As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur vs Jaswant Singh (2) "Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose.
" If the concept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section.
If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself.
The older a person becomes the more difficult it would be to prove that he is unable to maintain himself.
It is true that a son aged 77 may claim maintenance under the section from a father who is 97.
It is very unlikely to happen but if it does happen and the father is (1) T.L.R. , 40.
(2) ; , 84.
570 able to maintain while the son is unable to maintain himself no harm would be done by passing an appropriate order under section 488.
We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is not as if such cases have not arisen.
As long ago as 1873, Pearson, J.
In the matter of the Petition of W. B. Todd(1) had to deal with a major son who was deaf and dumb, and he had no hesitation in granting an order of maintenance.
The same conclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh vs Emperor(2) and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot.
We have seen no case in which a man of 77 has claimed maintenance and we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance.
It is not necessary to review all the case law.
The latest judgment which was brought to our notice is that of the Madras High Court in Amirithammal vs Marimuthu(3) in which Natesan, J. has written a very elaborate judgment.
He has referred to all the Indian cases and a number of English cases and statutory provisions both in England and in India.
We are unable to derive any assistance from the statutory provisions referred to by him or from the English Law on the point.
He relied on the use of the word "itself" in section 488 as showing that what was meant was a minor child.
We are unable to attach so much significance to this word.
It may well be that it is simpler or more correct to use the word "itself" rather than use the words "himself or herself.
" We may mention that Das Gupta, J., in Smt.
Purnasashi Devi vs Nagendra Nath (4) and Mudholkar, J., in State vs Ishwarlal(5) came to the same conclusion as we have done.
In view of the reasons given above we must hold that the word "child" in section 488 does not mean a minor son or daughter and the real limitation is contained in the expression "unable to maintain itself." Coming to the third point raised by the learned counsel we are of the view that the learned Additional Sessions Judge and the High Court were right in taking into consideration the existing situation ' the situation being that at the time the order was passe Chandra Kishore was a student of M.Com.
and Ravindra Kishore was a student of M.B.B.S. course.
We need not decide in this (1) [1873] 5 N.W.P. High Court Reports 237.
(2) (3) A.I.R. [1967] Mad. 77.
(4) A.T.R. (5) T.L.R. 571 case whether expenses for education can be given under section 488 because no such expenses have been taken into consideration in fixing the maintenance in this case.
It has not been shown to us that the amount fixed by the learned Additional Sessions Judge and confirmed by the High Court is in any way excessive or exorbitant.
In the result the appeal fails and is dismissed.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant 's four children, the respondents in the appeal, two of whom were majors and two were minors, filed an application under section 488 of the Criminal Procedure Code in September, 1963 for an order requiring the appellant to pay them maintenance.
The Trial Court allowed the application and fixed the monthly amounts to be paid as maintenance to each of the children.
The appellant 's revision application was dismissed but one filed by the respondents was allowed whereby the Additional Sessions Judge submitted the case to the High Court with recommendations to enhance the maintenance allowance.
The High Court accepted, the reference and thereafter, on an application by the appellant granted a certificate under article 134(1)(c) for an appeal to this Court.
It was contended on behalf of the appellant that (i) section 488 Cr.
P.C. was impliedly repealed by section 4 of the Hindu Adoptions and Maintenance Act 78 1956 insofar as it applied to Hindus; (ii) that the word "child" in section 488 means a minor; and (iii) that the maintenance fixed for two of the major children was based on wrong principles and was excessive inasmuch as expenses for education had been taken into consideration.
HELD : Dismissing the appeal : (i)There was no inconsistency between Act 78 of 1956 and section 488 Cr.
P.C. Both could stand together.
The Act of 1956 is an Act to amend and codify the law relating to adoptions and maintenance among Hindus.
The law was substantially similar before when it was never suggested that there was any inconsistency with section 488 Cr.
The scope of the two laws is different.
Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.
[568 A B] Ram Singh vs State, A.I.R. 1963 All. 355; Mahabir Agarwalla vs Gita Roy, ; and Nalini Ranjan vs Kiran Rani, A.T.R. 1965 Pat. 442; approved.
(ii)The word "child" in section 488 does not mean a minor son or daughter and the deal limitation is contained in the expression "unable to maintain itself".
If the concept of majority is imported into the section, a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section.
If this concept is not imported, no harm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself.
The older a person becomes the more difficult it would, be to prove that he is unable to maintain himself.
[569 F H] 566 Shaikh Ahmad Shaikh Mahommad vs Ba Fatma, I.L.R. [1943] Bom.
38, 40; Jagir Kaur vs Jaswant Sinqh ; , 84; in the matter of the Petition of W.B. Todd, (1873) 5 N.W.P. High Court Reports 237; and Bhagat Singh vs Emperor, 6 I.C. 960; referred to.
Purnasashi Devi vs Nagendra Nath, A.I.R. 1950 Cal. 465; and State vs Ishwarlal, I.L.R. ; approved.
Amiritliammal vs Marimuthu, A.I.R. 1967 Mad. 77; disapproved.
(iii)While it was not necessary to decide whether expenses for education can be given under section 488, in the present case, the Court below were right in taking into consideration the situation at the time of passing the order i.e. that the two major children were college students.
[570 G H]


judgement:
Appeals Nos.
1017, to 1027, 1029 to 1032, 1034 to 1037, 1901 to 1906 and 854 of 1968.
Appeals from the judgment and order dated January 30, 1967 of the Orissa High Court in O.J.Cs.
329 of 1965 etc.
C. B. Agarwala end R. N. Sachthey, for the appellant (in all the appeals) H. R. Gokhale, Santosh Chatterjee and G. section Chatterjee, for the respondents (in all the appeals).
The Judgment of the Court was delivered by Shah, J.
The State of Orissa has appealed to this Court against the judgment of the State High Court declaring "unconstitutional and invalid" Chapter IV of the Orissa Land Reforms (Amendment) Act 15 of 1965.
The Orissa Land Reforms Act 16 of 1960 (hereinafter called the principal Act) received the assent of the President on October 17, 1960.
By section 1(3) of the principal Act it was provided that the Act shall come into force in whole or in part, on such or date or dates as the Government may from time to time by notification appoint and different dates may be appointed for different provisions of the Act.
By a notification issued on September 25, 1968 certain provisions of the principal Act other than those contained in Chs.
III and IV were brought into force.
By a notification dated December 9,.1965 Ch.
III (sections 24 to 37 dealing with resumption for personal cultivation of any land held by a tenant and related matters) was brought into force.
But Ch.
IV (sections 38 to 52 dealing with ceiling of holdings of land and disposal of excess land) was not brought into operation.
The Legislature of the State of Orissa amended the principal Act by Act 13 of 1965.
By Act 13 of 1965 amendments were made in the principal Acts : the expressions "ceiling area" and "privileged raiyat" were defined by clauses (5) & 24 of section 24 and the expression "classes, of land" was defined in section 2(5 a).
The original Chs.
III and IV of the principal Act were deleted and were substituted by fresh provisions.
Nothing need be said about the amendments made in Ch.
III because in these groups of appeals the validity of these provisions is not in issue.
It may suffice to say that Ch.
III (sections 24 to 36) as amended 595 deals with the right of the landlord to resume land for personal cultivation, the extent of that right, and the proceedings for resumption of land.
Chapter IV as amended deals with ceilings and disposal of excess land.
By section 37 it is provided : "(1) No person shall hold after the commencement of this Act lands as landholder or raiyat under personal cultivation in excess of the ceiling area determined in the manner hereinafter provided.
By section 3 8 the Government is authorised to grant exemption from the operation of the ceiling in respect of certain classes of land Section 39 deals with the principles for determining the ceiling area.
Sections 40, 41 & 42 deaf with the filing of returns in respect of lands in excess of the ceiling area on the date of commencement of the Act and the consequences of failure to submit the return. ' Section 43 provides for the preparation and publication of draft statements showing ceiling and surplus lands by the Revenue Officer and section 44 provides for the publication of the final statement of ceiling and surplus lands after hearing objections, if any, received and after making enquiries as the Revenue Officer may deem necessary.
Section 45 provides that : "With effect from the beginning of the year next following the date of the final statement referred to in sub section (3) of section 44 the interests of the person to whom the surplus lands relate and of all landholders mediately or immediately under whom the surplus lands were being held shall stand extinguished and the said lands shall vest absolutely in the Government free from all encumbrances.
Section 46 provides for determination of compensation.
Section 47 sets out the principles for determining compensation.
It provides that the compensation in respect of the interest of the land holders mediately or immediately under whom the surplus lands are being held as a landholder or raiyat shall be fifteen times the fair and equitable rent.
It also provides for payment of in market value of tanks, wells and of structures of a permanent nature situate in the land, determined on the basis of fair rent in the manner prescribed therein.
Sections 48 and 49 deals with the preparation and publication of draft compensation assessment roll and the final compensation assessment roll.
By section 51 provision was made for settlement of surplus lands vested in the Government under section 45 with persons as raiyats in the order of priority mentioned therein and section 52 imposes a ceiling on future acquisitions.
It is provided thereby: 5 96 "The foregoing provisions of this Chapter shall, A mutatis mutandis, apply where lands acquired and held under personal cultivation subsequent to the commencement of this Act by any person through inheritance, request, gift, family settlement, purchase lease or otherwise, together with the lands 'in his personalcultivation at the time of such acquisition exceeds his ceiling limit.
By the amendment made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from june 20, 1964.
The Act is therfore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III Constitution.
But the power to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away.
the enactment of the of the of the competent Legislature to amending Act passed after the (Seventeenth Amendment) Act, 1964 does not therefore qualify for the protection of article 31 B. See Ramanlal Gulabchand Shah etc.
vs etc.
vs State of Gujarat & Ors.(1) Sri Ram Ram Narain Medhi vs The State of Bombay(2) This position is not disputed.
Chapter IV in the principal Act by orissa Act 13 of 1965 when brought into force is liable to be challenged the ground that it is inconsistent with or takes away orabridges any of the fundamental rights conferred by Part III of the Constitution, It was urged however, and that plea has found favour with the High Court, that section 47 incorporated by Act 13 of 1965 which provided for compensation not based on the market value of the land but at fifteen times the fair and equitable rent is in consistent with article 3 1 A, proviso 2, and is on that account viod.
To appreciate the contention the constitutional provisions relating to protection guaranteed by the Constitution against compulsory acquisition of property may be noticed.
By Ar.
31(2) as amended by the Constitution (Fourth Amendment) Act, 1955, insofar as it is material, it is, provided : "No property shall be compulsory acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which the compen (1)[1969] 1 S.C.R. 42.
(2)[1959] Supp.
1 S.C.R. 489, 597 sation is to be determined and given; Clause (2A) of article 31 which in substance defines the expression "law" providing for compulsory acquisition enacts that: "Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property." By article 31(2) read with article 31(2A) property may be compul sorily acquired only for a public purpose and by authority of a law which provides for compensation for the property so acquired and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and given.
In order that property may be validly acquired compulsorily the law must provide for the transfer of ownership or right to possession of any property to the State or to a corporation owned or controlled by the State.
By virtue of section 45 of the principal Act "the interests of person to whom the surplus lands relate and of all land holders mediately or immediately under whom the surplus lands were being held . stand extinguished and the lands.
. vest absolutey in the Government free from all encumbrances.
" This is clearly compulsory acquisition of land within the meaning of article 31(2) of the Constitution and the compensation determined merely at fifteen times the fair and equitable rent may not, prima facie, be regarded as determination of compensation according to the principles specified by the Act.
But article 31A which applies to the statute in question provides by the first clause: "Notwithstanding anything contained in Article 13 no law providing for (a)the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or (b) (c) (d) (e) shall be deemed to be void on the ground that it is tent with, or takes away or abridges any of the ferred by article 14, article 19 or article 31 598 The principal Act 16 of 1960 and the amending Act 13 of 1965 were both Acts enacted for ensuring agrarian reform, and the lands held by the petitioners were "estates" within the meaning of article 31 A.
By section 45 the rights of the land holders were sought to be extinguished or modified.
But to the operative part of article 31 A by section 2 of the Constitution (Seventeenth Amendment) Act, 1964, the second proviso was added.
The second proviso enacts : "Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which ,hall not be less than the market value thereof." By the Constitution (Seventeenth Amendment) Act, 1964, it was clearly enacted that under any law which provides for the acquisition of any land in an estate under the personal cultivation of the holder, compensation shall not be less than the market value of the land if such land be within the ceiling limit applicable to the holder under any law for the time being in force.
Before the High Court it was urged on behalf of the landholders that when the principal Act was enacted it became law in force, and the ceiling limit prescribed thereby became effective, even though Ch.
IV was not extended by a notification under section 1(3) of the Act, and since the subsequent legislation seeks to restrict the ceiling limit and to vest the surplus land in the Government under section 45 as amended, there is compulsory acquisition of land which may be laid only if the law provides for payment to the landholder for extinction of his interest, the market value of that part of the surplus land which is within the ceiling limit under the principal Act.
This argument found favour with the High Court.
In their view the expression "law in force" must be "construed only in the constitutional sense and not in the sense of its actual operativeness", and on that account it must be held that "there was a ceiling limit already provided by the principal Act as it was 'law in force ' within the meaning of that expression as used in the second proviso to article 31 A".
They proceeded then to hold that section 47 of the Act as amended provided for payment of compensation at a rate which is less than the market value of the land falling within the ceiling limit as originally fixed under of 1960, and the guarantee of the second proviso to article 31 A of the Constitution is on that account infringed.
We are unable to accept this process of reasoning.
The right to compensation which is not less than the market value under any law providing for the acquisition by the State of any land in an estate in the personal cultivation of a person is guaranteed by the second Proviso only where the land is within the ceiling limit applicable to him under any law for the time being in force.
A law cannot be said to be in force unless it is brought into operation by legislative enactment, or by the exercise of authority by a delegate empowered to bring it into operation.
The theory of a statue being "in operation in a constitutional sense" though it is not in fact in operation has, in our judgment, no validity.
Again Ch.
IV of the principal Act was repealed by the Amending Act 15 of 1965.
Article 31 A proviso 2 guarantees to a person, for compulsory acquisition of his land, the right to comPensation which is not less than the market value, when the land is within the ceiling limit applicable to him under a law for the time being in force.
On the plain words of the proviso the law prescribing the ceiling limit must be in force at the date of acquisition.
In the present case the law relating to the ceiling limit viz.
IV of the principal Act was never made operative by a notification, and was repealed by Act 15 of 1965.
The ceiling limit under section 47 of the principal Act was on that account inapplicable to the landholders who challenged the validity of section 45 of the amending Act.
The decision of this Court A. Thangal Kunju Mudaliar vs M. Venkatachalam Potti and Anr.
(1) on which the High Court relied lends no support to the views expressed by them.
In that case the Travancore State Legislature enacted Act 14 of 1124 M.E to provide for investigating cases of evasion of tax.
The Act was to come into force by section 1(3) on the date appointed by the State Government by notification.
The States of Travancore and Cochin merged on July 1, 1949 and formed the United State of Travancore and Cochin.
By Ordinance I of 1124 M.E. all existing laws of the Travancore State were to continue in force in the United State.
By a notification the Government of the United State brought the Travancore Act 14 of 1124 (M.E.) into force, and referred cases of certain tax payers for investigation to the Commission appointed in that behalf.
The tax payers challenged the authority of the Commission to investigate the cases.
They contended that the Travancore Act 14 of 1124 (M.E.) not being a law in force when the United State was formed, the notification bringing the Act into force was ineffective.
The Court rejected that plea.
Section 1(3) of Travancore Act 14 of 1123 (M.E.) was (1) ; L14 Sup.
C.I./69 9 600 existing law on July 1, 1949, and continued to remain in force by virtue of Ordinance 1 of 1124 (M.E.).
The notification issued in exercise of the power under section 1(3) of the Travancore Act 14 of 1124 (M.E.); the reference of the cases of the petitioners, the appointment of the authorised officials and the proceedings under the Act could not be questioned because section 1(3) was existing law on July 1, 1949.
In A. Thangal Kunju Mudaliar case(1) the contention that Travancore Act 14 of 1124 (M.E.) was not law in force until a notification was issued bringing into operation the provisions of the Act, authorising the appointment of a Commission, and referring the cases of tax payers to the Commission, was rejected.
The Court held that section 1(3) was in operation on July 1, 1949 and the power to bring into force the provisions of the Travancore Act was exercisable by the successor State.
It was not held that the other provisions of the Act were in force even before an ap propriate notification was issued.
In the case in hand section 1(3) of the principal Act was in force, but Ch.
IV of the Act was not brought into force.
The argument that provisions of the Act which by a notification could have been but were not brought into force, must still be deemed to be law in force, derives no support from the case relied upon.
Section 1(3) of Act 16 of 1960 is undoubtedly a law in force, but until the power is exercised by the State Government to issue an appropriate notification, the provisions of Ch.
IV could not be deemed to be law in force, and since no notification was issued before Ch.
IV of the principal Act was repealed, there was no ceiling limit applicable to the landholders under any law for the time being in force which attracted the application of the second proviso to article 31 A.
The appeals must, therefore, be allowed, and the order pass ed by, the High Court declaring Ch.
IV of Act 13 of 1965 amending Act 16 of 1960 ultra vires, be set aside.
The State will get its costs in this Court from the respondents.
There will be one hearing fee.
There will be no order as to costs in the High Court.
R.K.P.S. (1) ; Appeals allowed.

summary/full:
The Constitution of India, article 31 A, proviso 2, guarantees to a person for compulsory acquisition of his land, the right to compensation which is not less than the market value when the land is within the ceiling limit applicable to him under a law for the time being in force.
Section 1(3) of the Orissa Land Reforms Act, 1960, provided that the Act was to come into force in whole or in part on such dates as the Government may from time to time by notification appoint.
Certain provisions of the Act were brought into force by notifications.
But Chapter IV of the Act dealing with ceiling of holdings of land was not brought into force.
The Act was amended by Act 13 of 1965.
The amending Act deleted Chapter IV and substituted fresh provisions.
Chapter IV as amended dealt with ceiling and disposal of excess land and provided for compensation at fifteen times the fair and equitable rent.
In the High Court the respondent land holders urged that when Act 16 of 1960 was enacted it became law in force and the ceiling limit prescribed thereby became effective even though Chapter IV was not brought into force by notification under section 1(3) of the Act that since the Amending Act 15 of 1965 sought to restrict the ceiling limit and to vest the surplus land in the government there was compulsory acquisition of land which could be valid only if the law provided for payment to the land holder the market value of that part of the surplus land which was, within the ceiling limit under Act 16 of 1960.
The High Court accepted the contention and struck down Chapter IV of the Act as unconstitutional and invalid.
It was of the view, relying on this Court 's decision in Thangal Kunju Mudaliar 's case, that the expression "law in force ' had to be "construed only in the constitutional sense and not in the sense of its actual operativeness." In appeal by the State, HELD : Allowing the appeal ' A law cannot be said to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation.
The theory of a statute being " operation in a constitutional sense" has no validity.
The decision of this Court in Thangal Kunju Mudaliar ends no support to the view expresse by the High Court.
There this Court held that section 1(3) of Travancor Act 14 of II 24 (M.E.) was an "existing law" on the date of the merge of the States of Travancore and Cochin and the power to bring into fore the provisions of the Travancore Act was exercisable by the successor State It was not held that the other provisions of the Act were in force eve before an appropriate notification was issued.
[599 B C; 600 C D] 594 In the present case the law relating to the ceiling limit, viz., Chapter IV of Act 16 of 1960 was never operative by a notification and was repealed by Act 15 of 1965.
Therefore there was no ,ceiling limit applicable to the land holders under any "law for the time being in force" which attracted the application of the second proviso to article 3 1 A. [600 E] Thangal Kunju Mudaliar vs M. Venkitachalam Potti, ; ; explained.


judgement:
ivil Appeals Nos. 281, 284, 363, 383 to 393 and 513 to 567 of 1969.
Appeals from the judgment and order dated December 6, 1968 of the Madras High Court in Writ Petitions Nos.
1659 of 1968.
M.S. Sethu and A.V.V. Nair, for the appellant (in C.As.
281 and 363 of 1969).
M.S. Sethu and P. Parameshwara Rao, for the appellant (in C.A. No. 284 of 1969).
H.R. Gokhale and K. Jayaram, for the appellant (in C.A. No. 383 of 1969).
K. Jayaram and T.S. Vishwanatha Rao, for the appellants (in C.As.
Nos. 384 to 393 and 513 to 567 of 1969).
S.V. Gupte, section Mohan and A. V. Rangam, for the respondent (in C.A. No. 281 of 1969).
section Mohan and A1.
V. Rangam, for the respondents (in C.As.
Nos. 284, 363, 383 to 393 and 513 to 567 of 1969).
The Judgment of the Court was delivered by Shah, J.
At the conclusion of the hearing of these appeals on April 23, 1969, we announced that "the appeals are dismissed with costs; reasons in support of the order will be delivered thereafter".
We proceed to record the reasons in support of the order.
The appellants carry on business as dealers in "cane jaggery" in the State of Tamil Nadu.
As a result of certain legislative and executive measures, transactions of sale in "cane jaggery" were made liable as from January 1, 1968 to tax under the Madras General Sales Tax Act, 1959, and transactions of sale in "palm jaggery" remained exempt from sales tax.
The appellants filed petitions in the High Court of Madras challenging the validity of the levy of tax on "cane jaggery", on three grounds: (1) that the levy of tax on turnover from sale of "cane jaggery" ' was discriminatory and violated the equality clause of the Constitution; (2) that the levy of tax imposes a restriction on trade and commerce contrary to the provisions of Part XIII of the Constitution; and (3) there is excessive delegation of legislative authority to the executive and on that account the levy of tax pursuant to an order made in 617 exercise of the powers under section 59 of the Madras General Sales Tax Act 1 of 1959 on "cane jaggery" is invalid.
The High Court rejected all the contentions.
Counsel for the appellants have in these appeals urged the first two grounds and have in addition submitted that in levying tax on turnover from sale of "cane jaggery" legislative power has been colourably exercised.
The argument that there was excessive delegation to the executive of the legislative power was abandoned before this Court, because the State of Madras has enacted Act II of 1968 authorising levy of tax on sale of jaggery by amending Sch.
III to Madras Act 1 of 1959.
Turnover from sale of jaggery cane or palm was subject to tax under section 3(1) of the Madras Act IX of 1939 at three pies per rupee.
By G.O. 651 dated February 28, 1955 and G.O. 2780 dated September 7, 1955 all sales of "palm jaggery" effected through Co operative Societies and the Palm Gut Federation were exempt from tax.
By another G.O. No. 1605 dated April 19, 1956, all transactions of sale in "palm jaggery" were exempted from sales tax with effect from April 1, 1956.
Transactions of sale in "cane jaggery" therefore continued to remain liable to ' tax whereas sales of "palm jaggery" enjoyed the benefit of exemption from tax.
After the judgment of this Court in The Bengal Immunity Company Ltd. vs The State of Bihar & Others(1) the Parliament amended article 286 and entry 54 in List II of the Seventh Schedule 'and added a new Entry 92A in List I in the Seventh Schedule by the Constitution (Sixth Amendment) Act.
In, exercise of the power under Entry 92A List I the Parliament enacted the Central Sales Tax Act 74 of 1956.
By Ch.
IV of that Act the power reserved under the amended article 286 cl.
(3) was exercised by the Parliament, and certain classes of goods were declared to be of "special importance in inter State trade or commerce".
By section 15 certain modifications were declared in State Acts relating to the levy of taxes on sales and purchases of declared goods.
However in the list of goods of "special importance in inter State trade or commerce" gur or jaggery was when, the Act was enacted not included.
The Parliament then enacted the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957).
Section 3 of that Act authorised the levy and collection of additional duties in respect of several classes of goods including "sugar".
By section 4 it was provided that during each financial ' year, there shall be paid out of the Consolidated Fund of India (1) 618 to the States in accordance with the provisions of the second schedule, such sums, representing a part of the net proceeds of the additional duties levied and collected during that financial year, as are specified in that Schedule.
It was enacted by the proviso to cl.
(2) of the Schedule that if during that financial year there is levied and collected in any State specified in the Table a tax on the sale or purchase of sugar by or under any law of that State, no sums shall be payable to that State under sub cl.
(ii) or sub cl.
(iii) of cl.
(b) 'in respect of that financial year, unless the Central Government by special order otherwise directs.
The expression 'sugar ' was defined in section 2(c) as having the same meaning as it has in the First Schedule to the .
The Governor of Madras issued Ordinance 1 of 1957 directing that transactions of sale of "cane jaggery" be liable to a single point tax at 5 per cent.
with effect from April 1, 1957.
By virtue of the , as amended by Act 31 of 1958 "sugar" as defined in Item No. 8 of the First Schedule to the was declared a commodity essential to the life of the community and tax could thereafter be levied on "sugar" at the rate of 2 per cent.
But in view of the definition contained in the , there was some doubt whether the expression 'sugar ' included gut.
The State of Madras being apparently of the opinion that "palm jaggery" and "cane jaggery" were subject to the provisions of the Additional Excise Act 58 of 1957, issued on April 15, 1958, G.O., No. 1457 exempting all sales of "cane jaggery" from tax with effect from April 1, 1958.
Transactions of sale of "palm jaggery" were therefore exempt partially from sales tax from February 28 1955 and wholly from April 1, 1956, and transactions of sale of "cane jaggery" were exempt from tax from April 1, 1958.
The State Legislature enacted the Madras General Sales Tax Act 1 of 1959 with effect from April 1, 1959.
By section 3 every dealer whose total turnover was not less than Rs. 10,000 became liable to pay tax for each year at the rate of 2 per cent of his taxable turnover.
By section 8 it was: provided that subject to such restrictions and conditions as may be prescribed, a dealer who deals in goods specified in the Third Schedule shall not be liable to pay any tax under the Act in respect of such goods Item 5 in the Third Schedule was "sugar including jaggery and gur.
" Section 17 of that Act authorised the State Government by notification to exempt or to make reduction in rate 'in respect of any tax payable under the Act on the sale or purchase of any special goods or class of goods 'at all points or specified points in respect of sales by successive dealers or by any specified class on dealers in respect of the whole or ,any part of their turnover.
By section 59(1) of the Act the State Government was authorised by notification, to alter, add or cancel any of the Schedules.
619 On April 1, 1959 transactions of sale of "sugar including jaggery and gur" were exempt from liability to pay tax under .the
Madras General Sales Tax Act 1 of 1959.
The exemption applied to all transactions of sale of "cane jaggery" and "palm jaggery".
On September 10, 1965 the Government of India advised the State Government that "jaggery" was not included in the expression 'sugar ' in the Additional Duties of Excise Act 58 of 1957.
The State of Madras in exercise of the power under sub section
(1 ) of section 59 of the Madras General Sales Tax Act, issued G.O. 2261 dated December 30, 1967, that: "In the said (Third) Schedule in item 5, for the word 'including ' the words 'but not including ' shall be substituted.
" The State simultaneously issued another notification that: "In exercise of powers conferred by section 17(1) of the Madras General Sales Tax Act, 1959, the Governor of Madras granted exemption in respect of tax payable under the Act on all sales of palm jaggery.
" In consequence of the two notifications turnover from transactions of sale of "cane jaggery" which was till then exempt from tax became liable to tax under section 3 of the Madras Act 1 of 1959 whereas sale of "palm jaggery" remained exempt from liability ' to pay sales tax.
In support of the plea that the State had practised unlawful discrimination between sales of "palm jaggery" and "cane, jaggery" it was urged that "cane jaggery" and "palm jaggery" which were identical commodities and were treated similarly under the successive Sales Tax Acts of the State for many years past were without any rational nexus with the object sought to be served by the Madras General Sales Tax Act, 1959, differently treated 'and on that account the notification issued under section 59 sub section
(1) which modifies the Third Schedule is ultra vires.
It may be recalled that the notification under section 59(1) which was issued in exercise of executive authority has received legislative sanction by Madras Act 2 of 1968.
Amendment in the Third Schedule now flows from the exercise of legislative authority and not executive .authority.
Since section 8 read with the Third Schedule as amended by Madras Act 2 of 1968 exempts only "sugar" from liability to tax, sales of jaggery, cane and palm, now fall within the charging section.
But the Government of Madras have in exercise of power under section 17 of Act 1 of 1959 exempted transactions of sale of "palm jaggery" from tax.
It is true that between April 1,.
620 1958 and October 31, 1967 transactions of sale of "cane jaggery" and "palm jaggery" were exempt from liability to pay sales tax under the Madras General Sales Tax Acts of 1939 and 1959, but it cannot be inferred therefrom that the Legislature treated "palm jaggery" and "cane jaggery" as the "same commodity.
" For nearly three years before April 1, 1958 sales of "palm jaggery" were exempt from tax but sales of "cane jaggery" were not.
The evidence on the record clearly shows that "cane jaggery" and "palm jaggery" are commercially different commodities. "Cane jaggery" is produced from the juice of sugarcane; "palm jaggery" is produced from the juice of the palm tree.
Mr. Raghupathy, Deputy Secretary to the Government of Madras (Commercial Taxes) has stated in his affidavit that "palm jaggery" industry comes under the purview of Khadi and Village Industries Board and is one of the cottage industries which gives ,employment mainly to poor tappers.
The tappers, according to Mr. Raghupathy, collect "neera" from palm and other trees and prepare jaggery by the traditional method of boiling "neera" in their huts and produce jaggery without the aid of any machinery.
Production of "palm jaggery" in the State compared to "cane jaggery" is small.
The price of "palm jaggery" and "cane jaggery" differ widely and apparently "palm jaggery" and "cane jaggery" are consumed by different sections of the community.
It is clear that the method of production of "palm jaggery" and "cane jaggery" are different; they reach the consumers through different channels of distribution; the prices at which they are sold differ and they are consumed by different sections of the community.
In a recent judgment N. Venugopala Ravi Varma Rajah vs Union of India and Another(1) this Court observed: ".
Tax laws are aimed at dealing with complex problems of infinite variety necessitating adjustment of several disparate elements.
The Courts accordingly admit, subject to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative discretion in the matter of classification.
The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways: the Legislature may select persons, properties, transactions and objects and apply different methods and even rates for tax, if the Legislatures does so reason ably.
If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax (1) ; 621 in different ways and adopt different modes of assessment.
A taxing statute may contravene Article 14 of the Constitution if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate; incidence of taxation, which leads to obvious inequality.
" It was also said by the Court that: "It is for the Legislature to determine the objects on which tax shall be levied, and the rates thereof.
The Courts will not strike down an Act as denying the equal protection merely because other objects could have been, but are not, taxed by the Legislature.
" We are accordingly of the view that "cane jaggery" and "palm jaggery" are not commodities of the same class, and in any event in imposing liability to tax on transactions of sale of "cane jaggery" and exempting "palm jaggery", no unlawful discrimination denying the guarantee of equal protection was practised.
No serious argument was advanced in support of the plea that the freedom of trade and commerce guaranteed by Part XIII of the Constitution is infringed by the imposition of tax on "cane jaggery".
Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of "cane jaggery" no restriction on the freedom of trade or commerce or in the course of trade with or within the State is imposed.
The tax imposed on transactions of sale of "cane jaggery" does not affect the freedom of trade within the meaning of article 301.
As observed by this Court in The state of Madras vs IV.
K. Nataraja Mudaliar(1) "a tax may in certain cases directly and immediately restrict or hamper the free flow of trade, but every imposition of tax does not do so.
There is no substance in the contention that the Act which impose tax on "cane jaggery" and the notification which exempts "palm jaggery" from liability to tax imposes a colourable exercise of authority.
If the Legislature has the power to impose the tax, its authority is not open to challenge on a plea of colourable exercise of power: K.C. Gajapati Naravan Deo & Others vs The State of Orissa(2).
There will be one hearing fee.
G.C. Appeals dismissed.

summary/full:
As a result of a notification dated December 30, 1967 under section 59(1) of the Madras General Sales Tax Act and later by Act 2 of 1968 sales of jaggery became liable to tax.
But while by notification under section 17 'palm jaggery was exempted from tax 'cane jaggery ' was not.
The appellants who were dealers in 'cane jaggery ' challenged the levy by writ petitions in the High Court which were, however, dismissed.
In appeal before this Court it was contended (i) that the tax on 'cane jaggery ' while exempting 'palm jaggery ' was ,discriminatory and violative of article 14 of the Constitution; (ii) that taxation of 'cane jaggery ' was restrictive of trade and commerce and therefore violative of article 301; (iii) that the impugned legislation constituted a colourable exercise of power.
HELD: (i) The evidence on record clearly showed that 'cane jaggery ' and 'palm jaggery ' were commercially different commodities.
The methods of production of 'palm jaggery ' and 'cane jaggery ' were different; they reached the consumers through different channels of distribution; the prices at which they were sold differed and they were consumed by different sections of the community.
'Cane jaggery ' and 'palm jaggery ' did not thus belong to the same class and in differently treating them for the purpose of taxation there was no unlawful discrimination.
[620 B E; 621 C D] It was incorrect to say that the State Legislature had always treated the two products on the same footing.
For nearly three years before April 1, 1958 sales of 'palm jaggery ' were exempt from tax but sales of 'cane jaggery ' were not.
[620 B] Further, it is for the legislature to determine the objects on which tax shall be levied.
The courts will not strike down an Act as denying equal protection merely because other objects could have been but are not taxed by the legislature.
[621 B C] N. Venugopala Ravi Varma Rajah vs Union of India, ; , applied.
(ii) Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of 'cane jaggery ' no restriction on the freedom of trade or commerce or in the course of trade with or within the State.
was imposed.
[621 D F] State of Madras vs N. K. Nataraja Mudaliar. ; , referred to.
(iii) The plea of colourable exercise of power had no substance because the legislature had power in the present case to.
levy the tax.[621 G] 4 Sup.
C.I./69 616 K.C. Gajapati Narayan Deo & Ors.
vs State of Orissa, [1954] S.C.R.1, applied.


judgement:
Appeal No. 579 of 1966.
Appeal by special leave, from the judgment and order dated August 20, 1964 of the Calcutta High Court in Civil Rule No. 1715 of 1961.
D. N. Mukherjee, for the appellant.
B. C. Mitra and section C. Majumdar, for respondent No. 1.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal by special leave from the judgment and order of the High Court of Calcutta, August 20, 1964, in an application under section 115 of the Code of Civil Procedure, reversing the judgment of the Subordinate Judge, Howrah.
The facts are as follows : One Haji Abdul Karim, grandfather of respondents 2 to 4 exe cuted a Wakf al al aulad on March 30, 1917.
He constituted himself as the first Mutwali and named his two sons and widow as Mutwalis after his own death.
The Wakf provided for the benefit of the family and after the extinction of all the family a scheme for feeding,the poor.
On February 14, 1956 the present appellant Ayesha Bibi filed a suit claiming 1 /16th of the property as a sharer after the death of her husband Abdul Hamid.
This claim was made against respondents 2 to 4 who were the Mutwalis.
Ayesha Bibi joined the Commissioner of Wakfs, West Bengal as a defendant to the suit.
The suit was filed in the Court of Munsif, Howrah and reliefs claimed were a declaration that the Wakf was invalid, inoperative and void and that its enrolment in the Wakf Office was wrongly done and was of no avail.
She also asked for a permanent injunction restaining the Commissioner of West Bengal and other respondents from interfering with the possession of the property.
The Commissioner of Wakfs appeared in answer to the notice of the suit and filed a written statement on April 4, 1956.
He contended that the properties were governed by the Wakf which was valid and also that he was entitled to a notice under section 80 of 587 the Code of Civil Procedure before the suit was filed.
He stated that although he was entitled to a notice under section 70(1) of the Bengal Wakfs Act, 1934 it was, not necessary to add him as a defendant and he denied collusion between himself and the other defendants.
He observed that the other defendants were interested in secularising the wakf property for their own selfish ends.
On November 15, 1957 an application for amendment of the relief against the Wakf Commissioner was made to which the Wakfs Commissioner objected.
In his objections he stated that the suit was of a collusive nature as was apparent from the nature of the pleadings of the plaintiff and defendants other than himself.
The petition, however, was allowed.
No action was taken by the Commissioner to get that order set aside.
On May 15, 1958 the parties to the suit, other than the Commissioner, filed an application of compromise and May 22, 1958 was fixed for decision.
On the same day an application for striking off the name of the Commissioner from the array of the defendants was made.
This was heard in the presence of the counsel for the Commissioner and he did not object to the name being struck, off.
As a result the name of the Commissioner was struck off as a defendant.
The suit was also decreed the same day on compromise declaring the Wakf to be invalid 'and void and granting a perpetual injunction.
On June 20, 1958 the Commissioner made an application under section 70(4) of the Act for a declaration that the decree was void as no notice was given to him under section 70(1) of the Act.
The appellant objected but on April 20, 1960 the Munsif allowed the application and declared the decree to be void.
The appellant appealed to the Court of the Subordinate Judge, Howrah and the appeal was allowed.
It was held that the application under section 70(4) was incompetent as the Commissioner was present in the suit and the compromise decree was passed with the knowledge of the Commissioner and there was no need for a fresh notice to him under section 70(1) of the Act.
The Commissioner then filed a revision under section 115, C.P.C. and a learned single Judge of the High Court by the order, now under appeal, reversed the decision of the Subordinate Judge and restored the decree of the Munsif.
The order is challenged in this appeal.
Before we consider the question whether the Commissioners application under section 70(4) was proper it is necessary to examine the scheme of the Wakf Act.
The Act was passed to make provision for proper administration of Wakf properties in Bengal.
It applies to all wakfs whether created before or after the commencement of the Act, any property of which is situated in Bengal.
By Chapter 11 a Wakf Board is constituted and a whole time Officer called the Commissioner of Wakfs is appointed.
Chapter III lays 588 down the functions of the Board and the Commissioner and one of the functions under section 34 is the protection of Wakfs al al aulad.
Chapter IV deals with the enrolment of the Wakfs for which purpose a register of Wakfs is maintained.
Under section 45 the Commissioner has the power to enrol wakfs and also to amend the register from time to time.
Under section 46A the decision of the Commissioner is final subject to a decision of a competent court.
Chapter V deals with wakf accounts and Chapter VI with statements of wakfs al al aulad.
Chapter VII creates a bar to transfer of immovable property of wakfs.
Chapter VIII lays down the, duties of Mutwalis with other ancillary matters.
Chapter,IX deals with finance and Chapter X deals with judicial proceedings.
Chapter XI, XII and XIII deal with amendments and appealed, rule making power of the Provincial Government and power of the Board to make by laws and include some miscellaneous provisions.
We are concerned in this case with Chapter X which deals with judicial proceedings.
Section 69 in this Chapter provides as follows : "69.
Bar to compromise of suit or proceeding without sanction of Court.
No suit or proceeding by or against a mutwali as such in any Court shall be compromised without the sanction of the trying Court.
" Section 70 then provides "70.
Notice of suits etc., to be given to the Commissioner.
(1) In every suit or proceeding in respect of any wakf property or of a mutwalli as such except a suit or proceeding for the recovery of rent by or on behalf of the mutwalli the Court shall issue notice to the Commissioner at the cost of the party instituting such suit or proceeding.
(2) Before any wakf property is notified for sale in execution of a decree, notice shall be given bv the Court to the Commissioner.
(3) Before any wakf property is notified for sale for the recovery of any revenue, cess, rates or taxes due to the Crown or to local authority notice shall be given to the Commissioner by the Court, Collector or other person under whose order the sale is notified.
(4) In the absence of a notice under sub section (1) any decree or order passed in the suit or proceeding shall be declared void, if the Commissioner, within one month of his coming to know of such suit or proceeding, applies to the Court in this behalf.
(5) In the absence of a notice under sub section (2) or sub section (3) the sale shall be declared void, if the Commissioner within one month of his coming to know of the sale, applies in this behalf to the Court, or other authority under whose order the sale was held.
" Section 71 enables the, Commissioner to join as a party in any lit ' gation on his own application and to conduct or defend certain suits or proceedings on behalf of or in the interest of the wakf.
It will be noticed from the analysis of the Act that the Commissioner has a definite duty to perform in all suits in which the interests of the wakfs are involved.
Sub section
(1) of section 70 requires that in every suit or proceedings in respect of any wakf property the court shall issue a notice to the Commissioner.
This was done here because the Commissioner was a party and a summons had gone to him from the Court.
It is contended before us that this was not a notice but only a summons but we that nothing much turns upon this distinction.
The Commissioner had notice of the proceedings.
He appeared in the case, defended the wakf, characterised the suit as collusive and he was fully cog nizant of all that was happening in the suit.
The learned Judge in the High Court also held that there was no need to give the Commissioner another notice under sub section
(1) because the Commissioner had already notice of the suit.
The question, therefore, is whether in the absence of a notice under sub section
(1) the decree could be declared to be void.
Here the argument of the Commissioner in the High Court was that he had been removed from the array of the defendants and that he was, therefore, entitled to a special notice of the petition of compromise in the case.
It is to be noticed that section 70 speaks of several special notices, such as, in sub.
section (2) before any wakf property is notified for sale in execution of a decree, or in sub section
(3 ) before any wakf property is notified for sale for the recovery of any, revenue, cess, rates or taxes, but it does not provide for any special notice of a petition for compromise of a suit except the first notice that a suit had been filed in the court.
It is sgnificant that in s ' 69 although compromise cannot be made without the sanction of the trying court, there is no mention of any special notice to the Commissioner.
It follows.
therefore, that the Commissioner was entitled to a notice of the suit.
That may be by a letter from the court giving him this notice, or if he was made a party, by a summons to attend the court.
In the present case the second course was followed and a copy of the plaint must have accompanied the summons and in our opinion this was sufficient compli 590 ance with the provisions of the first sub section of section 70.
It is to be recalled that the Commissioner did appear, filed a writtenstatement, contested the suit and also described it as a collusive action between the plaintiff and the other defendants.
It is, however, surprising that when an application was made for striking off his name from the array of the defendants the Commissioner agreed to such a course.
This meant that in spite of notice to him of the collusive nature of the suit he was content to remain out side the suit and to give up all his pleas about the wakf and the collusive nature of the suit.
Having so acted it seems difficult to think that the decree could be declared void simply because the Commissioner had no special notice of the compromise.
No special notice of compromise petition is required to be issued under the Act.
He had notice of whole of the Suit and of the claim made by the plaintiff in the case.
He was afforded an opportunity to resist the suit and, in fact ' resisted but later gave up the fight and agreed to go out of the suit.
In these circumstances, it will be wrong to hold that the decree was void because the Commissioner was not given a notice of the petition.
Learned counsel for the Commissioner relied strongly upon a decision of the Madras High Court reported in State Wakf Board, Madras vs Abdul Azeez Sahib and others(1) in which the decision in the present case was noticed and applied for declaring a decree void.
In that case the counsel for the representatives of Wakf Board, Mr. Sherfuddin was also for some time the chairman of the Wakf Board and his knowledge of the suit was attributed to the State Wakf Board and it was heldd that there was notice as required by section 57(1) of (29 of 1954).
Section 57 (1) of that Act read: In every suit or proceeding relating to title to wakf property . the Court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.
" Under section 57(3) it was further provided "In the absence of a notice under sub section (1) any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the Court in this behalf." Under the third sub section quoted here the application had to be made wain one month of the knowledge of the Board and it was held by the trial Judge that knowledge of Mr. Sherfuddin was knowledge of the Board and the application was delayed.
Reversing this decision the learned Chief HJustice of Madras held that (1) A.I.R. 1968 Mad. 79.
Under the third sub section quoted, here the application had to be made within one month of the knowledge of the Board and it was held by the trial Judge that knowledge, of Mr. sherfuddig was knowledge of the Board and the application was delayed.
Rever sing this decision the learned Chief Justice of Madras held that (1) A.I.R. 1968 Mad.
591 knowledge of Mr. Sherfuddin was not the knowledge of the Chair man of the State Wakf Board and could not be held to constitute knowlegde within the section.
According to the learned Chief Jus tice the knowledge which started limitation for the application was official knowledge in his capacity as a Chairman and not in his capacity as counsel.
This case is thus distinguishable.
Here the Commissioner of Wakfs Board was made a party and had full notice of the pendeacy of the suit and that it was a collusive suit between the plaintiff and the Mutwalis.
It cannot be said, therefore, that he had no knowledge or that he had no notice of the proceedings.
Indeed the learned Chief Justice of Madras while relying upon the decision in the present appeal also said that the facts of the 'two cases were quite different and the main point involved was also different.
He only relied upon a passage that in the judgment of the learned Judge of the Calcutta High Court the private know ledge of the Commissioner did not exonerate the court from its obligation to give notice to the Board.
There is no question here of any private knowledge.
The knowledge was provided by the summans to the Commissioner and he did appear in the case.
In the other case there was no notice whatever from the court, nor even a summons and it is thus clearly distinguishable.
The learned counsel further relied upon Muzafar Ahmed vs Indra Kumar Das and Others(1).
In that case the Commissioner was sent a notice but was not made a party.
The suit was,dismissed.
In the appeal that followed the Commissioner was not made a party and no notice of appeal was served or him.
The appeal was allowed.
In the second appeal a ground was taken that the appeal below was incompetent as there was no notice to the Commissioner.
Notice of the second appeal was however, issued to the Commissioner.
The decree was hed to be not void but voidable and as the Commissioner had not applied within a month the decree was allowed to stand.
the court also held that the worrds 'suit or proceeding ' in s.70(40 did not include an appeal.
There is much in this decision which may require careful consideration.
It is sufficient to say that the decision does not support the present constention of the Commissioner.
Benoy Kumar Acharjee Choudhury & Ors.
vs Ahamama Ali and Anr.(2) only lays down that under s.70 of the Act a notice is necessary to be served on the Commissioner in a suit in respect of wakf property even though the wakf may not be admitted.
To this proposition no exception can be taken but it does not advance the case of the Commissioner.
On the other hand, in The Commissioner of Wkfs Bengal vs Shuhbzada Mohammed Zahangir Shah(30 it was held that although (1) 77 C.L.J. 159 (2) (3) 592 a Commisisoner was entitled to a notice of a suit, under section 70 of the , but if he actually contested the suit as a party defendant, he could be treated as an intervener under section 71, even, if no notice was given to him and that the suit was not vitiated.
This case supports the proposition that joining the Commissioner as a party and his actual appearance in the suit stand equal to a notice under section 70(1).
None of the cases really supports the proposition now contended for before us.
The language of the fourth sub section of section 70 is quite clear that the Commissioner must not have knowledge previously of the suit.
Where the Commissioner has knowledge of the suit be, cannot claim a second knowledge as the start of C limitation.
In other words, his presence as a party in the suit after summons to him must be treated as a notice to him under the first sub section of section 70.
The decision of the Subordinate Judge was thus correct and was wrongly reversed.
The Commissioner attempted to raise the question of a notice under section 80 of the Code of Civil Procedure but that question could D only arise in the original suit and not in these proceedings.
In the result the judgment under appeal must be set aside and that of the Subordinate Judge, Howrah restored with costs against the Commissioner.
We regret this result and only hope that some way will be found out of the difficulty created by the foolish action of the Commissioner in leaving the field clear for the compromise of the suit.
Y.P. Appeal allowed.

summary/full:
The predecessor of respondents 2 to 4 executed a wake al al aulad providing for the benefit of the family and after the extinction of all thefamily a scheme for feeding the poor.
The appellant filed a suit claiming share in the property after the death of her husband, and for a declaration that the wakf was invalid and void and its enrolment in the wakf office was wrongly done.
This claim was made against respondents 2 to 4 who were the Mutawalis, and the Commissioner of Wakfs, West Bengal was joined as defendant to the suit.
The Commissioner appeared in answer to the notice of the suit and filed written statement and characterised the suit as collusive.
The parties to the suit, other than the Commissioner filed an application of compromise and an application was made forstriking off the name of the Commissioner from the array of defendants.
The counsel for the Commissioner was present at the hearing and he did not object to the name being struck off.
The name of Commissioner was struck off, and the suit was decreed on compromise declaring the wakf invalid and void and granting a perpetual injunction.
The Commissioner made an application under section, 70 (4) of the Bengal Wakfs Act, 1934 for declaring the decree void as no notice was given to him under 70(1) of the Act.
The Munsif allowed the application and declared the decree to be void.
On appeal, the Subordinate Judge held that the application under section 70(4) was incompetent as the Commissioner was present in the suit and the decree was passed with the knowledge of the Commissioner and there was no need for a fresh notice to him under section 70(1) of the Act.
The High Court, in revision, reversed the decision of the Subordinate Judge and restored that of the Munsif.
In appeal by special leave, this Court, HELD : The appeal must be allowed and the judgment of the Subordinate Judge must be restored.
Section 70 speaks of several special notices, such as, in sub section
(2) before any wakf property is notified for sale in execution of a decree or in sub section
(3) before any wakf property is notified for 'sale for the recovery of any revenue, cess, rates or taxes, but it does not provide for any special notice of a petition for compromise of a suit except the first notice that a suit had been filed in the court.
In section 69 although compromise cannot be made without the sanction of the trying court, there is no mention of any special notice to the Commissioner.
It follows, therefore, that the Commissioner was entitled to a notice of the suit.
That may be by a letter from the court giving him this notice, or, if he was made a party, by a summons to attend the court.
In the present case the second course was followed and a copy of the plaint must have accompanied the summons and this was sufficient compliance with the provisions of the first sub section of section 70.
[589 F 590 A] 586 The Commissioner had notice of whole of the suit and of the claim made by the plaintiff in the case.
He was afforded an opportunity to resist the suit and, in fact, resisted it but later gave up the fight and agreed to go out of the suit.
In these circumstances, it will be wrong to bold that the decree was void because the Commissioner was not given a notice of the compromise petition.
[592 C] State Wakf Board, Madras vs Abdul Azeez Sahib & Ors.
A.I.R. , distinguished.
Muzafar Ahmed vs Indra Kumar Das & Ors.
77 C.L.J., 159, Benoy Kumar Acharjee Choudhury & Ors.
vs Ahamma Ali & Anr.
and The Commissioner of Wakfs, Bengal vs Shahbzada Mohammed Zehangir Shah, , referred to.