judgement:
eal No. II of 1949.
Appeal by special leave from the judgment of the Allaha bad High Court (Harish Chandra J.) dated 11th November, 1949, in Criminal Miscellaneous Case No. 960 of 1949.
The facts of the case and the arguments of counsel are set out fully in the judgment.
Alladi Krishnaswami Iyer (Alladi Kuppuswami with him) for the appellant.
M.C. Setalvad, Attorney General for India (V. N. Sethi, with him) for the respondent.
May 5.
The judgment of Kania C.J. and Patanjali Sastri J. was delivered by PATANJALI SASTRI J. This is an appeal by special leave from an order of the High Court at Allahabad dismiss ing an application under sections 491 and 561 A of the Code of Criminal Procedure for release of the appellant who was arrested in pursuance of an extradition warrant issued by the Regional Commissioner of the United State of Rajasthan who is the principal officer representing the Crown in the territory of that State.
The appellant who is a member of the Uttar Pradesh Civil Service was appointed in 1948 to serve what was then known as the Tonk State in various capacities, and during such service he is alleged to have helped the Nawab in obtaining the sanction of the Government of India to the payment of Rs. 14 lakhs to the Nawab out of the State Treasury for the discharge of his debts, and to have induced the Nawab by threats and deception to pay the appellant, in return for such help, sums totalling Rs. 3 lakhs on various dates.
On these allegations the appellant is charged with having committed offences under section 383 (Extortion) and 575 section 420 (Cheating) of the Indian Penal Code which are extraditable offences under the (hereinafter referred to as "the Act").
The warrant was issued under section 7 of the Act to the District Magis trate, Nainital, where the appellant was residing after reverting to the service of the Uttar Pradesh Government, to arrest and deliver him up to the District Magistrate of Tonk.
The appellant 's case is that the sum of Rs. 3 lakhs was paid to him by the Nawab to be kept in safe deposit in a bank for the Nawab 's use in Delhi, that no offence was committed and that the amount was returned when demanded by the authorities of the Tonk State.
The warrant was issued mala fide on account of enmity.
Various technical objections were also raised to the validity of the warrant and to the jurisdiction of the Magistrate at Nainital to take cogni sance of the matter and arrest the appellant.
The High Court overruled all the objections and dismissed the application for the release of the appellant.
On behalf of the appellant Mr. Alladi Krishnaswami Aiyar contended that section 7 of the Act under which the warrant purports to have been issued had no application to the case and that the entire proceedings before the Magistrate were illegal and without jurisdiction and should be quashed.
Learned counsel, relying on section 18 of the Act which provides that nothing in Chapter III (which contains section 7) shall "derogate from the provisions of any treaty for the extradition of offenders," submitted that the treaty entered into between the British Government and the Tonk State on the 28th January, 1869, although declared by section 7 of the Indian Independence Act, 1947, to have lapsed as from the 15th August, 1947, was continued in force by the "Stand still Agreement" entered into on the 8th August, 1947, that that treaty exclusively governed all matters relating to extradition between the two States, and that, inasmuch as it did not cover the offences now charged against the appel lant, no extradition of the appellant could be demanded or ordered.
576 The Attorney General appearing for the Government ad vanced three lines of argument in answer to that contention.
In the first place, the standstill agreement entered into with the various Indian States were purely temporary ar rangements designed to maintain the status quo ante in respect of certain administrative matters of common concern pending the accession of those States to the Dominion of India, and they were superseded by the Instruments of Acces sion executed by the Rulers of those States.
Tonk having acceded to the Dominion on the 16th August, 1947, the stand still agreement relied on by the appellant must be taken to have lapsed as from that date.
Secondly, the treaty was no longer subsisting and its execution became impossible, as the Tonk State ceased to exist politically and such sover eignty as it possessed was extinguished, when it covenanted with certain other States, with the concurrence of the Indian Government "to unite and integrate their territories in one State, with a common executive, legislature and judiciary, by the name of the United State of Rajasthan," the last of such covenants, which superseded the earlier ones, having been entered into on the 30th March, 1949.
Lastly, even assuming that the treaty was still in operation as a binding executory contract, its provisions were in no way derogated from by the application of section 7 of the Act to the present case, and the extradition warrant issued under that section and the arrest made in pursuance thereof were legal and valid and could not be called in question under section 491 of the Criminal Procedure Code.
As we are clearly of opinion that the appellant 's contention must fail on this last ground, we consider it unnecessary to pronounce on the other points raised by the AttorneyGeneral especially as the issues involved are not purely legal but partake also of a political character, and we have not had the views of the Governments concerned on those points.
It was not disputed before us that the present case would fall within section 7 of the Act, all the requirements thereof being satisfied, if only the applicability of 577 the section was not excluded, under section 18, by reason of the Extradition Treaty of 1869, assuming that it still subsists.
The question accordingly arises whether extradi tion under section 7 for an offence which is not extradita ble under the treaty is, in any sense, a derogation from the provisions of the treaty, which provides for the extradition of offenders for certain specified offences therein called "heinous offences," committed in the respective territories of the high contracting parties.
Under article 1 the Gov ernment of the Tonk State undertakes to extradite any per son, whether a British or a foreign subject, who commits a heinous offence in British territory.
A reciprocal obliga tion is cast by article 2 on the British Government to extradite a subject of Tonk committing such an offence within the limits of that State.
Article 3 provides, inter alia, that any person other than a Tonk subject committing a heinous offence within the limits of the Tonk State and seeking asylum in British territory shall be apprehended and the case investigated by such Court as the British Govern ment may direct.
Article 4 prescribes the procedure to be adopted and the conditions to be fulfilled before extradi tion could be had, and article 5 enumerates the offences which are "to be deemed as coming within the category of heinous offences" which, however, do not include the of fences charged against the appellant.
The argument on behalf of appellant was put thus: The maxim expressio unius est exclusio alterius is applicable, as pointed out by McNair on The Law of Treaties, (1938 pp. 203, 204), to the interpretation of treaties.
According to that rule the treaty in question should be read as allowing extradition only for the specified offences and for no others, that is to say, as implying a prohibition of extra dition by either State for any other offence than those enumerated in article 5.
Further, while the treaty entitled each of the high contracting parties to demand extradition on a reciprocal basis, an unilateral undertaking by the Indian Government to grant extradition for an offence for which it could not claim extradition under the treaty 578 violates the principle of reciprocity which is the recog nised basis of all international compacts for extradition.
Such an arrangement places the State of Tonk in a more advantageous position which was not contemplated by the framers of the treaty.
And where, as here, the person whose surrender is demanded is an Indian subject who is not liable to be extradited under the treaty, his surrender under section 7 trenches upon the liberty of the subject.
In so far, therefore, as that section authorises extradition of a person, especially when he is an Indian subject, for an offence which is not extraditable under the treaty, it derogates from the provisions of the treaty within the meaning of section 18, and its application to the present case is thereby excluded.
The argument proceeds on a miscon ception and cannot be accepted.
No doubt the enumeration of "heinous offences" in arti cle 5 of the treaty is exhaustive in the sense that the high contracting parties are not entitled, under the treaty, to claim extradition of criminals in respect of other offences.
But we cannot agree that such of enumeration implies a prohibition against either those parties providing by its own municipal laws for the surrender of criminals for other offences not covered by the treaty.
It is difficult to imagine why the contracting States should place such a fetter on their respective legislatures in advance not only in regard to their subjects but also in regard to alien offenders, for, if such prohibition is at all to be implied, it should cover both.
As pointed out in Wheaton 's Interna tional Law, there is no universally recognised practice that there can be no extradition except under a treaty, for some countries grant extradition without a. treaty: (Fourth Edition, sections 116 (a) to (d), pp. 186 189).
No doubt the constitutional doctrine in England is that the Crown makes treaties with foreign States for extradition of criminals but those treaties can only be carried into effect by Act of Parliament: (Ibid section 116 (b), p. 187).
Accordingly, the extradition Acts are made applicable by an Order in Council in the case of each State which enters into an extradition treaty 579 with the Crown, and they are made applicable only so far as they can be applied consistently with the terms and condi tions contained in the treaty.
Under such a system where the high contracting parties expressly provide that their own subjects shall not be delivered up, as in the case of the treaty between England and Switzerland, the power to arrest and surrender does not exist: Regina vs Wilson(1).
This, it was observed by Cockburn C.J. in that case, was a "serious blot" on the British system of extradition, and the Royal Commission on Extradition, of which he was the chairman, recommended in their report that "reciprocity in this matter should no longer be insisted upon whether the criminal be a British subject or not.
If he has broken the laws of a foreign country his liability to be tried by them ought not to depend upon his nationality .
The convenience of trying crimes in the country where they were committed is obvious.
It is very much easier to transport the criminal to the place of his offence than to carry all the witnesses and proofs to some other country where the trial is to be held:" (Wheaton, section 120 (a), pp. 197, 198).
Evidently, similar considerations led to the passing of the Act by the Indian Legislature providing for the surrender of criminals, including Indian subjects, for a wide variety of offences, with power to the Governor General in Council to add to the list by notification in the Gazette generally for all States or specially for any one or more States.
This statutory authority to surrender cannot of course enlarge the obliga tion of the other party where an extradition treaty has been entered into, and this is made clear by section 18.
But it is equally clear that the Act does not derogate from any such treaty when it authorises the Indian Government to grant extradition for some additional offences, thereby enlarging, not curtailing, the power of the other party to claim surrender of criminals.
Nor does the Act derogate, in the true sense of the term, from the position of an Indian subject under the treaty of 1869.
That treaty created no right in the subjects of either (1) 580 State any more than in fugitive aliens not to be extradited for other than "heinous offences.
" It is noteworthy that even in Wilson 's case, (ubi supra) where there was an excep tion in the treaty in favour of the subjects of the con tracting States, the decision was based not on the ground that the treaty by itself conferred any right or privilege on English subjects not to be surrendered but on the ground that the Order in Council applying the Extradition Act, 1870, to Switzerland limited its operation, consistently with the terms of the treaty, to persons other than English subjects.
It is, therefore, not correct to say that, by providing for extradition for additional offences, the Act derogates from the rights of Indian citizens under the treaty or from the provisions of the treaty.
We are accord ingly of opinion that the arrest and surrender of the appel lant under section 7 of the Act is not rendered unlawful by anything contained in the treaty of 1869, assuming that it still subsists.
The appeal fails and is dismissed.
FAZL ALI J.
I have had the advantage of reading the judgments prepared by my brothers Sastri and Mukherjea, who have given different reasons for arriving at the same con clusion.
As I am inclined to agree with the line of reason ing in both the judgments, I concur in the order that this appeal should be dismissed.
MAHAJAN J.
I agree with the judgment going to be deliv ered by my brother Mukherjea.
For the reasons given therein this appeal should be dismissed.
MUKERJEA J.
This appeal, which has come up before us on special leave granted by this Court, is directed against a judgment of Harish Chandra J. of the Allahabad High Court dated 11th of November, 1949, by which the learned Judge dismissed an application of the appellant under sections 491 and 561 A of the Criminal Procedure Code.
The facts which are material for purposes of this appeal are not in controversy and may be shortly stated as follows: The appellant Dr. Ram Babu 581 Saksena, who is a resident of the United Provinces, was a member of the Executive Civil Service in that province, and during his official career, extending over SO years, held various important posts, both in and outside that province.
In January, 1948, he was appointed Administrator of the Tonk State, where a dispute was going on at that time regarding succession to the rulership of the State between two rival claimants.
On 11th of February, 1948, the dispute was set tled and Ismail Ali Khan was recognised as the Nawab or the Ruling Prince of the State and appellant was then appointed Dewan and Vice President of the State Council, of which the Nawab was the President.
In April, 1948, the Tonk State, together with several other States in Rajputana, integrated and formed together the United State of Rajasthan and the appellant thereupon became the Chief Executive Officer of the Rajasthan Government.
Towards the end of July, 1948, he got another special post under the Rajasthan Government, but soon afterwards, he took leave and proceeded to Naini Tal, where he has been residing since then.
On 23rd May, 1949, he was arrested at Naini Tal on the strength of a warrant issued under section 7 of the , by Shri V.K.B. Pillai, Regional Commissioner and Political Agent of the United State of Rajasthan.
The warrant, which is dated the 8th of May, 1949, was addressed to the District Magistrate of Naini Tal and directed the arrest of Dr. Saksena and his removal to Rajasthan, to be delivered to the District Magistrate of Tonk for enquiry into certain of fences against the laws of that State which he was alleged to have committed.
After his arrest, the appellant was released on bail in terms of the warrant itself and was directed to be present before the District Magistrate of Tonk on the 7th of June, 1949.
The allegations against the appellant in substance are, that while he was 'the Dewan of the Tonk State and Vice President of the State Council, the Nawab, being in urgent need of money to meet his personal demands, requested Dr. Saksena to help him in obtaining for his own use 582 a sum of Rs. 14 lakhs from the State Treasury.
Dr. Saksena promised his assistance on condition that the Nawab would give him a sum of Rs. 3 lakhs out of this amount as his share.
By dint of his efforts, the appellant succeeded in inducing the State Ministry to pay the full amount of Rs. 14 lakhs to the Nawab in different instalments.
The first instalment, amounting to over Rs. 21/2 lakhs was paid on 31st March, 1948, and a further sum of Rs. 5 lakhs was paid on 21st of April following.
On that date, it is said, the Nawab paid to Dr. Saksena a sum of Rs. 1,50,000 which was only half of the promised amount.
A few days later, Dr. Saksena pressed for payment of the balance and held out threats to the Nawab that in case the money was not paid, the latter would find himself in serious difficulties as his position as a Ruling Prince of the State was not at all secure and there were grave charges against him.
As a result of these threats and misrepresentations, the Nawab was induced to pay to the appellant the balance of Rs. 1,50,000 in two instalments.
The matter became known to the Regional Commissioner some time in November 1948 and he called Dr. Saksena for an interview and succeeded in getting back from him the entire sum of Rs. 3 lakhs which the Nawab had paid.
On the basis of these facts, Dr. Saksena has been accused of having committed offences under sections 383 and 420 of the Indian Penal Code.
On 3rd June, 1949, Dr. Saksena filed an application in the High Court of Allahabad under sections 491 and 561 A of the Criminal Procedure Code, complaining of illegal and unauthorised detention under the warrant of the Regional Commissioner of Rajputana dated the 8th of May, 1949.
The legality of the warrant and of arrest thereunder was at tacked on a number of grounds.
It was contended, first of all, that the applicant was falsely implicated by the Nawab on account of enmity which grew up between them for various reasons and the allegations made were totally false.
It was next said that the District Magistrate of Naini Tal could not take cognizance of the matter without the previous 583 sanction of the U.P. Government under section 197 of the Criminal Procedure Code and that the sanction of the Rajpra mukh of the United State of Rajasthan was also necessary before any proceeding could be initiated.
The third and the main contention was that the alleged offences being said to have been committed in the State of Tonk, the case would be governed by the provisions of the Extradition Treaty entered into between the British Government and the Tonk State on 28th of January, 1869, and as neither "extortion" nor "cheating" was mentioned in the list of offences for which extradition was permissible under that Treaty, the warrant of arrest issued under section 7 of the Extradition Act was wholly illegal and unauthorised.
It is admitted that these offences are specified in the Schedule to the Indian Extra dition Act of 1903, but it was said that section 18 of the Extradition Act expressly made the Act inapplicable when its provisions "derogated" from those of a Treaty.
Lastly, it was urged that the extradition warrant was a mala fide step taken by the Nawab of Tonk with the help of his friend the Regional Commissioner of Rajasthan for ulterior purposes and that it constituted a fraud upon the Statute and an abuse of the processes of law.
The application was heard by Harish Chandra, J. sitting singly, and by a judgment dated 11th of November, 1949, which fully and elaborately dis cussed the different points raised in the case, the learned Judge rejected the application of the petitioner.
No cer tificate was given by the High Court under section 205 (1) of the Government of India Act, 1935, and the present appeal has been brought to this Court on the strength of special leave granted by it.
Sir Alladi Krishnaswami Aiyar, who appeared in support of the appeal, has very properly not pressed before us all the points that were canvassed on behalf of his client in the Court below.
His contention, in substance, is that the rights of extradition in the present case should be regulat ed exclusively by the provisions of the Extradition Treaty that was entered into between the Tonk State and the British Government 584 on 28th of January,.
1869, and was subsequently modified by a supplementary ,Treaty in the year 1887.
This Treaty, it is argued, has not been abrogated or rendered ineffective in any way by reason of the merger of the Tonk State in the United State of Rajasthan, and the decision of the High Court on this point is erroneous.
According to the provi sions of this Treaty, no extradition is permissible in respect to offences of "extortion" and "cheating" with which the appellant is charged and the warrant of arrest issued by the Political Agent is consequently illegal and ultra vires.
It is conceded by Sir Alladi that if section 7 of the , is held to be applica ble to the facts of the present case, the warrant of arrest issued by the Political Agent of Rajasthan could not be assailed as invalid or inoperative; but his contention is that section 18 of the Extradition Act makes an express reservation in cases where Treaty rights exist and to the extent that the provisions of Chapter III of the Extradition Act derogate from those of any Treaty relating to extradi tion of offenders, the Treaty is entitled to prevail.
To appreciate the merits of this contention, it may be convenient to refer at this stage to a few sections of the of 1903 as well as to the material provisions of the Extradition Treaty between the Tonk State and the British Government which have a bearing upon the present question.
Chapter 111 of the deals with surrender of fugitive criminals in case of States other than foreign States and section 7, with which this chapter opens, provides as follows: "(1) Where an extradition offence has been committed or is supposed to have been committed by a person, not being a European British subject, in the territories of any State not being a foreign State, and such person escapes into or is in British India, and the Political Agent in or 1or such State issues a warrant, addressed to the District Magis trate of any district in which such person is believed to be, (or if such person is believed to be in any Presidency town 585 to the Chief Presidency Magistrate of such town), for his arrest and delivery at a place and to a person or authority indicated in the warrant such Magistrate shall act in pursu ance of such warrant and may give directions accordingly.
" * * * * The expression "extradition offence" has been defined in section 2 (b) and means "any such offence as is described in the First Schedule to the Act.
" The First Schedule gives a catalogue of offences described with reference to specific sections of the Indian Penal Code and it includes offences punishable under sections 383 and 420 of the Indian Penal Code prima facie, it seems therefore that all the conditions laid down in section 7 of the Extradition Act are fulfilled in the present case.
the warrant has been issued by the Political Agent of a State which is not a "foreign State" as defined by the Act and the offences with which the appellant is charged are "extradition offences" as specified in Sched ule i. Sir Alladi 's contention, as stated above, is that section 7, which is in Chapter III of the Extradition Act, is controlled by section 18 which lays down that "nothing in this chapter shall derogate from the provisions of any treaty for the extradition of offenders, and the procedure provided by any such treaty shall be followed in any case to which it applies, and the provisions of this Act shall be modified accordingly.
" Turning now to the Extradition Treaty between the Tonk State and the British Government, it will be seen that the First Article of the Treaty provides for extradition, where a British subject or a foreign subject commits a "heinous" offence in British territory and seeks shelter within the limits of the Tonk State.
The Second Article deals with an offender who is a subject of the Tonk State and having committed a "heinous" offence within the State seeks asylum in British territory; while the Third Article relates to a person other than a Tonk subject who commits a "heinous" offence within the limits of the Tonk State and seeks asylum in British territory.
The conditions 586 under which extradition could be had in all such cases and the procedure to be followed are laid down in article 4.
Article 5 then gives a list of offences which would be deemed as coming within the category of "heinous" offences.
It is not disputed that neither "cheating" nor "extortion" are mentioned in this list.
The whole controversy, there fore, centers round the point as to whether in view of the provisions of the Extradition Treaty mentioned above, extra dition could legally be made or demanded in respect of offences coming under sections 383 and 420 of the Indian Penal Code which are mentioned in the list of offences specified in Schedule I to the Extradition Act but do not find a place in article 5 of the Treaty.
Could it be said that the provisions of the Extradition Act, derogate in this respect from the Treaty between the Tonk State and the British Government and consequently, the terms of the Treaty would override the statute as indicated in section 18 of the Extradition Act ? The learned Attorney General, who appeared for the Government of India, put forward a two fold argument in reply to the contention of Sir Alladi.
He argued in the first place, that section 18 of the has no application to the present case inasmuch as the Extradition Treaty between the Tonk State and the British Government, upon which the appellant relies, does not subsist and cannot be enforced, at the present day.
The other contention is that even if the Treaty still subsists, there is nothing in its terms which prohibits extradition for offences other than those described as heinous offences in article 5.
It is argued that "to derogate" means "to detract" or "to take away" and the Schedule to the Extradi tion Act by mentioning certain offences, which do not occur in the list of "heinous offences" as given in the Treaty, cannot be said to have derogated from the terms of the Treaty.
Both these points were fully argued on both sides and it is clear that if on either of these points a decision is reached adverse to the appellant, the appeal is bound to fail.
587 So far as the first point is concerned, Mr. Setalvad has drawn our attention to various political changes that have come over the Tonk State since the conclusion of the Extra dition Treaty in 1869.
In 1869 Tonk was one of the Native States in India with a "separate" political existence of its own and the Treaty that was entered into in that year was meant to regulate exclusively the rights and obligations in matters of extradition of offenders as between the Tonk State on the one hand and the British Government on the other.
In 1887 there was a modification of the Treaty but it is not disputed that the modification made certain alter ations in the procedure which are not material for our present purpose.
The major political change with regard to all Indian States which vitally affected their existing Treaties with the British Government occurred on the 15th of August, 1947, when India became an Independent Dominion.
Section 7 of the Indian Independence Act provided inter alia that: "(1) As from the appointed day (b) The suzerainty of His Majesty over the Indian States lapses, and with it, all treaties and agreements in force at the date of the passing of this Act between His Majesty and the rulers of Indian States . .
As a result of this provision, the Extradition Treaty between Tonk and the British Government must be deemed to have lapsed with effect from the 15th of August, 1947.
If matters stood there, obviously there would be nothing left upon which section 18 of the could possibly operate.
There was, however, a Standstill Agreement entered into by the Indian Dominion with the Indian States, the first article of which runs as follows: "1.
(1) Until new agreements in this behalf are made, all agreements and administrative arrangements as to matters of common concern now existing between the Crown and any Indian State shall, in so far as may be appropriate, contin ue as between the Dominion of 588 India or, as the case may be, the part thereof, and the State.
(2) In particular, and without derogation from the generality of sub clause (1) of this clause the matters referred to above shall include the matters specified in the Schedule to this agreement.
" The Schedule does mention "extradition" as one of the matters to which the Standstill Agreement is applicable.
This was certainly intended to be a temporary arrangement and Mr. Setalvad argues that as there was no Treaty in the proper sense of the term but only a substitute for it in the shape of a temporary arrangement, section 18 of the Extradition Act which expressly mentions a Treaty cannot be applicable.
While conceding that prima facie there is force in the conten tion, I think that this would be taking a too narrow view of the matter and I should assume for the purposes of this case that under the Standstill Agreement the provisions of the Treaty of 1869 still continued to regulate matters of extradition of criminals as between the Tonk State on the one hand and the Indian Dominion on the other till any new agreement was arrived at between them.
Though the Standstill Agreement was to take effect after the establishment of the Indian Dominion, the In strument was actually signed on 8th of August, 1947.
On the 16th of August, 1947, Tonk acceded to the Dominion of India and one of the terms in the Instrument of Acces sion is that the "Ruler accepts the position that with regard to matters specified in the Schedule to the Instrument, the Dominion Legislature would be entitled to make laws for the State." "Extradition including the surrender of criminals and accused persons to parts of His Majesty 's Dominion outside India" is one of the matters specified in the Schedule.
Thus the State gave up and surrendered in favour of the Dominion Legislature its right, to legislate in respect to extradition after the date of accession.
Whether the existing Extradition Treaty was ipso facto abrogated by this Instrument of Accession is not so clear.
Obviously, the Indian Dominion 589 could pass any legislation it liked regarding matters of extradition between the Tonk State, and any other State, either Indian or Foreign.
No such law was, however, passed by the Indian Legislature except that very recently under an Adaptation Order the Extradition Act of 1903 has been made applicable to States under Group B in the Indian Constitution in which Rajasthan is included.
It is to be noted that the Extradition Act itself, which is made applicable to the United State of Rajasthan, contains an express provision in section 18 which safeguards exist ing treaty rights.
It is somewhat unusual that an Extradi tion Treaty would be subsisting even after the State had acceded to India but we have no materials before us upon which we could definitely hold that the Treaty has been expressly superseded or abrogated by the Indian Legislature.
The next important thing is that in April, 1948, there was a Covenant entered into by the Rulers of nine States including Tonk, by which it was agreed by and between the covenanting parties that the territories of these nine States should be integrated into one State by the name of the United State of Rajasthan.
This was done with the concurrence of the Dominion of India.
Later on, on 12th of May, 1949, Mewar also became a party to this Covenant and the United State of Rajasthan was reconstituted by the integration of the territories of all the ten States.
By the Covenant of Merger, the Covenanting States agreed to unite and integrate their territories in one State known as the United State of Rajasthan and to have a common executive, legislature and judiciary.
The Rulers of all the States became members of the Council of Rulers and the President was designated as the Raj Pramukh of the United State.
Article VI of the Covenant of Merger runs as follows: "(1) The Ruler of each Covenanting State shall, as soon as practicable and in any event not later than the first day of May, 1948, make over the administration of his State to the Raj Pramukh; and thereupon 590 (a) all rights, authority and jurisdiction belonging to the Ruler which appertain or are incidental to the Govern ment of the Covenanting State shall vest in the United State and shall hereafter be exercisable only as provided by this Covenant or by the Constitution to be framed thereunder; (b) all duties and obligations of the Ruler pertain ing or incidental to the Government of the Covenanting State shall devolve on the United State and shall be discharged by it; and (c) all the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State.
" The question now is how far was the Extradition Treaty between the Tonk State and the British Government affected by reason of the merger of the State into the United State of Rajasthan.
When a State relinquishes its life as such through incorporation into or absorption by another State either voluntarily or as a result of conquest or annexation, the general opinion of International Jurists is that the treaties of the former are automatically termi nated.
The result is said to be produced by reason of com plete loss of personality consequent on extinction of State life(1).
The cases discussed in this connection are gener ally cases where independent States have ceased to be such through constrained or voluntary absorption by another with attendant extinction of the former 's treaties with other States.
Thus the forceable incorporation of Hanover into the Prussian Kingdom destroyed the previous treaties of Hanover.
The admission of Texas into the United States of America by joint resolution extinguished the Treaties of the Independent Republic of Texas(2).
The position is the same when Korea merged into Japan.
According to Oppenheim, whose opinion has been relied upon, by Sir Alladi, no succession of rights and duties ordinarily takes place in such cases, and as political and personal treaties presuppose the exist ence of a contracting State, (1) Vide Hyde on International Law, Vol.
III, p. 1529.
(2) Vide Hyde on International Law, Vol.
II1, p. 1531, 591 they are altogether extinguished.
It is a debatable point whether succession takes place in cases of treaties relating to commerce or extradition but here again the majority of writers are of opinion that they do not survive merger or annexation(1).
The remarks quoted above do not, however, seem quite appropriate to a case of the present description.
Here there was no absorption of one State by another which would put an end to the State life of the former and extinguish its personality.
What happened here was that several States voluntarily united together and integrated their territories so as to form a larger and composite State of which every one of the covenanting parties was a component part.
There was to be one common executive, legislature and judiciary and the Council of Rulers would consist of the Rulers of all the Covenanting States.
It may not be said, therefore, that the Covenanting States lost their personality altogether and it is to be noted that for purposes of succession of Ruler ship and for counting votes on the strength of population and other purposes the Covenant of Merger recognises a quasi separation between the territories of the different States.
But although such separation exists for some pur poses between one State territory and another, it is clear that the inhabitants of all the different States became, from the date of merger, the subjects of the United State of Rajasthan and they could not be described as subjects of any particular State.
There is no such thing as subject of the Tonk State existing at the present day and the Ruler of Tonk cannot independently and in his own right exercise any form of sovereignty or control over the Tonk territory.
The Government, which exercises sovereign powers, is only one, even though the different Rulers may have a voice in it.
It seems to us that in those altered circumstances the Extradi tion Treaty of 1869 has become entirely incapable of execution.
It is not possible for the Tonk State, which is one of the contracting parties to act in accordance with the terms of the treaty, for it has no longer any independent (1) Oppenheim on International Law, Vol.
I, p. 152, 592 authority or sovereign rights over the Tonk territory and can neither make nor demand extradition.
When as a result of amalgamation or merger, a State loses its full and inde pendent power of action over the subject matter of a treaty previously concluded, the treaty must necessarily lapse(1).
It cannot be said that the sovereignty of the Tonk State in this respect is now vested in the United State of Rajasthan.
The authority, so far as extradition was concerned, was already surrendered by the Tonk State in favour of the Dominion Government by the Instrument of Accession.
But even assuming that these treaty rights could devolve upon the United State of Rajasthan by reason of article 6 of the Covenant of Merger, the latter, it seems to me, could be totally incapable of giving effect to the terms of the treaty.
As has been said already, there could be no such thing as a subject of the Tonk State at the present moment and article 2 of the Treaty which provides for extra dition of Tonk subjects accused of having committed heinous offences within Tonk territory and seeking asylum elsewhere would be wholly infructuous.
The United State of Rajasthan could not possibly demand extradition on the basis of this article, and if reciprocity, which is the essence of an Extradition Agreement, is gone, the Treaty must be deemed to be void and inoperative.
The decision in Terlinden vs Ames (2) which was relied upon by Sir Alladi in course of his arguments, rather forti fies the view that I have taken.
The question there was whether an Extradition Treaty between Prussia and the United States of America, which was entered into in 1852, could be given effect to after the incorporation of Prussia into the German Empire.
The question was answered in the affirmative.
It was pointed out inter alia that the Constitution of the German Empire left sufficient independent power and sover eignty to the States composing the confederation to enable them to act upon these treaties and it was observed by Chief Justice Fuller, who delivered the opinion of the Court, that where sovereignty in respect (1) Vide Hyde on International Law, Vol.
p. 1535.
(2) ; 593 to the execution of treaties is not extinguished and the power to execute remains unimpaired, outstanding treaties cannot be regarded as void.
This is the real criterion and as obviously the power of the Tonk State to execute the treaty is altogether gone after the Covenant of Merger, the treaty cannot but be regarded as void.
The other case cited by Sir Alladi, viz., that of Lazard Brothers vs Midland Bank Ltd.(1) has absolutely no bearing on this point.
It laid down the well accepted proposition of International Law that a change in the form of government of a contracting State does not put an end to its treaties.
The treaty entered into by the Czarist Russia could be given effect to after the Revolution, once the new government was recognised as a person in International Law.
My conclusion, therefore, is that the Extradition Treaty between the Tonk State and the British Government in 1869 is not capable of being given effect to in the present day in view of the merger of the Tonk State in the United State of Rajasthan.
As no treaty rights exist, section 18 of the has no application and section 7 of the Act has been complied with, there is no ground upon which we can interfere.
In view of my decision on the first point, the second point does not require determination and I refrain from expressing any opinion upon it.
In the result, the appeal fails and is dismissed.
DAS J I substantially agree with the reasonings given in the judgment just delivered by my learned brother Mukher jea and concur in dismissing this application.
Appeal dismissed.

summary/full:
In 1869 the British Government and the State of Tonk entered into a treaty which provided for the extradition of offenders in respect of certain offences specified therein called "heinous offences," which did not include the of fences of cheating and extortion.
In 1903 the Indian Extradition Act was passed which provided for extradition in respect of cheating and extortion also, but section 18 of the Act provided that nothing contained in the Act "shall derogate from the provisions of any treaty for the extradition of offenders.
" Under the Independence of India Act, 1947, the suzerainty of His Majesty over the Indian States lapsed and with it all treaties and agreements in force; but under a "standstill agreement," between the Indian Dominion and the States (including Tonk) all agreements between His Majesty and the States were continued, including agreements in respect of extradition.
Tonk acceded to the Dominion of India in 1947 and became a member State of the United State of Rajasthan.
The appellant was a member of the Uttar Pradesh Civil Service and his services were lent to the State of Tonk in 1948.
After he had reverted to the Uttar Pradesh he was charged with the offences of cheating and extortion alleged to have been committed while he was in Tonk and was arrested under an extradition warrant issued under section 7 of the Extradition Act, 1903.
He applied under es.
4=91 and 561 A of the Code of Criminal Procedure for his release, contending that in view of the provisions of section 18 of the Extradition Act and the Treaty of Extradition of 1869, his arrest was illegal: Held per KANIA O. J. and PATANJALI SASTRI J. (FAZL, ALI.
J. concurring), Even assuming that the Extradition Treaty of 1869 subsisted after the merger of the Tonk State, by providing for extradition for additional offences the Extradition Act of 1903 did not derogate from the provisions of the Treaty of 5869 or the rights of Indian citizens thereunder, and the arrest and surrender of the appellant under section 7 of the Act was not, therefore, rendered unlawful by anything contained in the said Treaty.
574 Per MUKHERJEA J. (FAZL ALI, MAHAJAN and DAS JJ.
concur ring).
The Extradition Treaty of 1869 was not capable of being given effect to in view of the merger of the Tonk State in the United State of Rajasthan, and, as no enforce able treaty right existed, section 18 of the Extradition Act of 1903 had no application; and inasmuch as the conditions of section 7 of the said Act had been complied with, the warrant of arrest issued under section 7 of the Act was not illegal.


judgement:
minal Appeal No. 193 of 1961.
Appeal by special leave from the judgment and order dated February 9 and 10, 1961, of the Gujarat High Court in Criminal Appeal No. 367 of 1960.
D.R. Prem, K.L. Hathi and R.H. Dhebar.
for the appellant.
The respondent did not appear.
December 6, 1963.
The Judgment of the Court was delivered by 1/SC1/64 51 802 SARKAR J.
This appeal raises a question under the .
It was unfortunate that there was no appearance on behalf of the respondent but Mr. Prem appearing in support of the appeal has placed the matter very fairly before us with all the relevant reported decisions from the point of view of both the appellant and the respondent.
We are much beholden to him for this assistance.
The respondent is the Manager of an oil mill.
The mill had a spur gear wheel.
A workman of the mill while greasing the spur gear wheel which was then in motion had one of his hands caught in it.
Eventually that hand had to be amputated.
It appeared that the spur gear wheel bad a cover which had bolts for fixing it to the base but at the time of the accident the cover was not there, having apparently been removed earlier.
There is no evidence to show when it was last in position.
The respondent was prosecuted under section 92 of the Act for having failed to, comply with section 21(1) (iv) (c).
The relevant part of this section is as follows: section 21.
(1) In every factory the following namely, . . . . . . . . . . . . (iv) unless they are in such position or of such construction as to be safe to every person employed in the factory as they would be if they were securely fenced, the following, namely . . . . . . (c) every dangerous part of any other machinery, shall be securely fenced by safeguards of substantial construction which shall be kept in position while the parts of machinery they are fencing are in motion or in use: Section 92 of the Act provides as follows: 803 section 92.
Save as is otherwise expressly provided in this Act if in, or in respect of, any factory there is any contravention of any of the provisions of this Act the occupier or manager of the factory shall be guilty of an offence and punishable with imprisonment or with fine There is no dispute that a guard had been put over the spur gear wheel and it was a proper guard.
It is not contended that if it had been there, then the respondent could be said.
to have committed any offence, but it was not there.
The workman said that it had been removed by the respondent for repairs while the case of the respondent was that the workman had himself removed it.
The learned trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone without his consent or knowledge.
The learned Judges of the High Court when the matter came to them in appeal, referred to a very large number of cases, mostly of the English Courts under the English and a few of our High Courts and from them they deduced the two following principles: (1) Though the obligation to safeguard is absolute under section 21(1)(iv)(c) of the Indian Act, yet it is qualified by the test of foreseeability, and (2) If the 'Safeguard provided by the employer or manager is rendered nugatory by an unreasonable or perverted act on the part of the workman, there is no liability of the employer or manager.
With great respect to the learned Judges of the High Court we are unable to appreciate the relevancy of these two principles to the decision of the case in hand.
Nor does it seem to us that the learned Judges of the High Court rested their judgment on any of these principles.
We, therefore, think it unnecessary to notice the cases mentioned in the judgment of the High Court or discuss the principles to be deduced from them.
804 As the High Court stated, there is no dispute that the spur gear wheel was a dangerous machine within the meaning of section 21(1)(iv)(c).
That being so, clearly, there was an obligation to securely fence it and to see that the fence was "kept in position while the parts of machinery they are fencing are in motion or in use".
Indeed the fact that the respondent had provided the guard over the machine puts it beyond doubt, as the High Court observed, that the machine was dangerous within the meaning of the section.
It was not contended that the risk from the unguarded machine was not a foreseeable risk.
No question of the risk not being foreseeable, therefore, arises in this case nor is this put up by way of a defence.
The High Court proceeded on the assumption that it had not been proved that the workman had himself removed the guard.
We will also proceed on that assumption.
The High Court held that in a criminal case an accused was not bound to offer any explanation and if he did and that explanation was not established, that would not justify his conviction for the offence with which he was charged.
This is a proposition which it is unnecessary to dispute in the present case.
The High Court then observed that section 21(1)(iv)(c) of the Act contemplated a default and that default had to be established by the prosecution.
It lastly said that there was nothing in the Act to indicate that the legislature intended that an occupier or manager must always be on the look out to bring to book every offender who removed the safeguard furnished by him or that a failure on his part to do so must entail his conviction.
It also observed that the statute did not require that where the occupier or manager had carried out his obligation under the section by providing a proper safeguard, he would be liable if someone else, not known to him, removed it without his knowledge, consent or connivance.
It, therefore, held that as in the present case it could not be said that either he or the workman had removed the guard, it followed that someone whom the occupier or the manager could not fix 805 upon had removed it and that was something which the occupier or manager could not reasonably be expected to anticipate and he could not be made liable for such removal.
We are unable to accept this view of the matter.
No doubt the default on the part of the person accused has to be established by the prosecution before there can be a conviction.
It has to be observed that section 21 (1)(iv)(c) requires not only that the dangerous part of a machine shall be securely fenced by safeguards but also that the safeguards "shall be kept in position while the parts of the machinery they are fencing are in motion or in use".
We should have thought that the words "shall be securely fenced" suggest that the fencing should always be there.
The statute has however put the matter beyond doubt by expressly saying that the fencing shall be kept in position while the machine is working.
That is the default that has happened here; the fencing was not there when the machine had been made to work.
This is an admitted fact and no question of establishing it arises.
Does the mere fact that someone else had removed the safeguard without the knowledge, consent of connivance of the occupier or manager always provide a defence to him? We do not think so.
When the statute says that it will be his duty to keep the guard in position when the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this tie was not liable.
It is not necessary for us to say that in every case where it is proved that the manager or occupier had provided the necessary fence or guard but at a particular moment it appeared that the fence or guard had been removed, he must be held liable.
Suppose the fence for some reason for which the manager or occupier is not responsible, suddenly breaks down and the machine remains unfenced for sometime before the owner or occupier found that out and replaced the fence.
It may be that in such a case he cannot be made liable.
A statute does 806 not, of course, require an impossibility of a person.
But there is nothing to show that is the case here.
The respondent has given no evidence whatever to show what he had done to carry out his duty to see that the guard was kept in position when the machine was working.
The onus to prove that was on him because his defence depended on it.
He has completely failed to discharge that onus.
We, therefore, think that he is liable under section 92 of the Act for having failed to carry out the terms of section 21(1)(iv).
Section 101 of the Act was referred to as supporting the contention that the liability of an occupier or manager for failure to observe the terms of the Act was absolute and the only defence available to him was that provided by it.
In our view, it is unnecessary to deal with that question.
It does not arise in the present case, for we find that the respondent had offered no defence whatever, whether under section 101 or otherwise.
His only point was that he did not know what happened to the guard and that, in our opinion, is no defence at all.
We wish, however, to refer to the section for another purpose.
The section states that where an occupier or manager of a factory is charged with an offence punishable under this Act, he shall be entitled to have any other person whom he charges as the actual offender brought before the Court and if he proves to the satisfaction of the Court (a) that he used due diligence to enforce the execution of the Act, and (b) that the said other person committed the offence in question without his knowledge, consent or connivance, then that other person shall be convicted of the offence and the occupier or the manager shall be discharged.
It will appear, therefore, that even where the occupier or manager proves that somebody else has removed the fencing without his knowledge, consent or connivance, that alone would not exempt him from liability but he has further to prove that he had used due diligence to enforce the execution of the Act which can only mean, in a case like the present, that he exercised due diligence 807 to see that the fence which under the Act it was his duty to see was kept in position all along had not been removed.
It seems to us clear that if it was his duty to exercise due diligence for the purpose in a case where he could establish that somebody else had removed the fence, it would be equally his duty to exercise that diligence where be could not prove who had removed it.
If it were not so, the intention of the Act to give protection to workmen would be wholly defeated.
For these reasons we are unable to agree with the view of the High Court or the learned trial magistrate.
Accordingly we allow the appeal and set aside the judgment of the Courts below and convict the respondent under section 92 for contravening the terms of section 21(1)(iv)(c).
We impose on him a fine of Rs.200.
In default he shall undergo one week 's simple imprisonment.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
While greasing the spur gear wheel of an oil mill, one of the hands of a workman got caught and had to be amputated.
It appeared that at the time of the accident the cover of the spur gear wheel was not there.
The respondent, who is the manager of the mill was prosecuted under section 92 of the for having failed to comply with section 21(1) (iv) (c) of the Act.
The workman said that the cover had been removed by the respondent for repairs, while the case of the respondent was that the workman had himself removed it.
The trial Judge was unable to accept either version and he acquitted the respondent observing that he could not be held liable if the cover was removed by someone, without his consent or knowledge.
On appeal, the High Court affirmed the acquittal.
Held: (i) The mere fact that someone else had removed the safeguard without the knowledge, consent or connivance of the occupier or manager does not provide a defence to him.
When the statute says that it will be his duty to keep a guard in position while the machine is working and when it appears that he has not done so, it will be for him to establish that notwithstanding this he was not liable.
(ii) Even where the occupier or manager could establish that somebody else had removed the fence, he has further to prove that he exercised due diligence to see that the fence, which under the Act was his duty to see was kept in position all along, had not been removed.


judgement:
l Appeal No.
1072 of 1963.
Appeal from the judgment and order dated April 10.
1963 of the Andhra Pradesh High Court in Special Appeal No. 52 of 1962.
K. R. Chaudhuri, for the appellant.
A. V. Viswanatha Sastri and T. V. R. Tatachari, for the respondent.
May 4, 1964.
The Judgment of the Court was delivered by HIDAYATULLAH J.
The respondent Dentu Bhaskara Rao was returned to the Andhra Pradesh Legislative Assembly from Kakinada constituency at the last general election.
The appellant C. V. K. Rao was his closest competitor.
There were two other candidates but they obtained very few votes and they have not shown any further interest.
The appellant filed an election petition to question the election of the respondent on many grounds: one such ground was that the respondent was disqualified 154 under section 7 (d) of the Representation of the People Act, 1951 (43 of 1951).
The respondent had obtained a mining lease from the State of Andhra Pradesh on April 13, 1960, though on the date he filed his nomination paper he had not begun operations under that lease.
The appellant took objection to the nomination of the respondent on the ground that he held a contract from the Andhra Pradesh Government within the prohibition of section 7(d) of the Act, but the Returning Officer over ruled his objection.
The Election Tribunal later held that he was disqualified under section 7(d) of Act 43 of 1951 and declared the election void.
On appeal, the High Court of Andhra Pradesh reversed the decision and the present appeal has been filed on a certificate granted by the High Court.
Section 7(d) reads as follows: "7.
A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State (a) (b) (c) (d) if there subsists a contract entered into in the course of his trade or business by him with the appropriate Goverment for the supply of goods to, or for the execution of any works undertaken by, that Government;" The mining lease was in the standard form and after setting out the consideration for the lease, it described in Parts I to III, the area of the lease, the description of the area, liberties, powers and privileges to be exercised and enjoyed by the lessee and the restrictions and conditions as to their exercise.
In Part IV it described the liberties, powers and privileges reserved to the State Government and in Parts V and VI the rents and royalties reserved by the lease and certain other provisions relating to them.
Part VII then dealt with the covenants of the lessee in respect of payment 155 of rents, royalties, taxes etc.
One such covenant was in clause 21 and was headed "Right of Pre emption" and it conferred on the State Government a right of pre emption of the minerals lying in or upon the land demised or elsewhere under the control of the lessee.
That clause was interpreted by the Tribunal as a contract entered in the course of ' trade or business by the respondent with the State Government for the supply of goods to that Government.
The High Court held that there was no such contract.
The disqualification which results from section 7(d) is condi tioned by a number of circumstances.
First, there must be a subsisting contract (this is to say in actual existence) between the appropriate Government and the candidate.
Then the contract must be in the Course of the trade or business of the candidate and, finally, it must be inter alia for the supply of goods to such Government The appropriate Government according to the definition of the expression is the Government of Andhra Pradesh.
Tile High Court in reaching its conclusion interpreted cl. 21 of Part VII of the lease and held that the mining lease was not a contract, that clause 21 did not amount to a contract and that cl. 21 even if a contract was not a contract for the supply of goods to the Government.
This conclusion is assailed by the appellant.
It is convenient.
to quote the clause at this stage: "21.
(a) The State Government shall from time to time and at all times during the said term have the right (to be exercised by notice in writing to the lessee) of pre emption of the said minerals (and all products thereof) lying in or upon the said lands hereby demised or elsewhere under the control of the lessee and the lessee shall with all possible, expedition deliver all minerals of products or minerals purchased by the State Government under the power conferred by this provision in the quantities, at the times in the manner and at the plate specified in the notice exercising the said right.
156 (b) Should the right to pre emption conferred by this present provision be exercised and a vessel chartered to carry the minerals or products thereof procured on behalf of the State Government or the Central Government be detained on demurrage at the port of loading the lessee shall pay the amount due for demurrage according to the terms of the charter party of such vessel unless the State Government shall be satisfied that the delay is due to causes beyond the control of the lessee.
(c) The price to be Paid for all minerals or products of minerals taken in pre emption by the State Government in exercise of the right hereby conferred shall be the fair market price prevailing at the time of pre emption provided that in order to assist in arriving at the said fair market price the lessee shall, if so required, furnish to the State Government for the confidential information of the Government particulars of quantities, descriptions and prices of the said minerals or products for carriage of the same and shall produce to such officer or officers as may be directed by the State Government original or authenticated copies of contracts and charter parties entered into for the sale of freightage of such minerals or products.
(d) Mr. K. R. Chaudhury contended that under this clause there was a standing contract for the supply of goods and all that Government had to do was to send a notice to the respondent and he was compelled to supply the goods to Government.
He pointed out that from the time the lease was granted Government was asking the respondent to commence operations to raise the minerals but the respondent avoided working the mine probably to save himself from the disqualification.
According to Mr. Chaudhury, it mattered not whether the mine was worked or not, but 157 what mattered was that there was a subsisting contract for the supply of mineral, to the appropriate Government.
Mr. A. Vishwanatha Sastri, in reply, contended that the mining lease could not be regarded as a contract and further that it was not in the course of ' the trade or business of the respondent, and finally that, in any event, it was not a contract for the supply of goods.
That it was in the course of business of the respondent almost goes without saying.
It is not necessary, as Mr. Sastri suggested, that a course of business based upon other transactions must first exist before the offending contract can be said to be in the course of business.
That contract may itself be the start of the business and the words 'in the course of the business ' would still be apt.
As the mining lease was subsisting, the con tract, if any there be, was also subsisting and there is no doubt on that aspect of the matter.
The question is whether the provisions of cl. 21 bring about a contract for the supply of goods.
This question can be broken into two which are: (a) whether cl. 21 can be regarded as a contract and (b) whether it can be regarded as a contract for supply of goods.
Clause 21 is invariably inserted in every mining lease.
It reserves to the Government the right to the minerals which vest in Government but which are allowed to be raised by the lessee holding the lease.
The lease is, in one sense, a contract between the Government and the lessee because there is consideration on both sides and an offer and acceptance.
There are obligations created by it.
some of which are contractual even though some may be regarded as arising from the conditions of the rant.
The mining lease without cl. 21 cannot possibly be described as a contract for the supply of goods.
Without that clause there would neither be a mention of goods nor of their supply.
If the lease is to be read as satisfying the disqualification in section 7(d), cl. 21 alone can satisfy it.
Clause 21 speaks of a right of the Government to pre empt the minerals and all products thereof lying in or around the land demised or elsewhere under the control of the lessee.
There is, however, no concluded contract in respect of any goods because it hardly needs to be said that relying upon this clause the lessee cannot begin delivery of the ore to the Government.
He can do so only if the Government 158 serves a notice on him stating the quantity pre empted and the time within which the supply is to be made.
The clause, however, does not make it obligatory on Government to pre empt any quantity of mineral or at all.
There is no obligation to buy nor is there any compulsion on the part of the lessee to sell unless asked.
In these circumstances, the clause does no more than to keep intact a right of the Government to obtain the minerals or their products as and when Government requires in preference to others.
Till Government makes up its mind and serves a notice there is no obligation to make any deliveries and even though the word ',subsists ' is a word of wide import, it cannot be said that a contract for the sale of goods subsists because a contract requires an offer and its acceptance and is not a mere reservation of a right.
Taking the most liberal view of the matter it is clear that cl. 21 did not bring into being a contract for the supply of goods.
AR that it did was to reserve to the Government the right to prior purchase of the minerals raised by the respondent.
The reservation of such rights does not amount to a contract for the supply of goods which can be said to subsist between the parties.
The High Court was, therefore, right in reversing the decision of the Election Tribunal.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The respondent obtained a mining lease from the State Government.
Clause 21 of the lease reserved to the Government the right to prior purchase of the minerals raised by the lessee.
While the lease was subsisting, the, respondent stood for election to the state Legislative Assembly and was elected.
The appellant, his closest competitor, challenged the election by an election petition on the ground, inter alia, that the respondent was disqualified under section 7(d) of the Representation of People Act (XLIII of 1951), because he had a contract with the Government for supply of goods.
153 HELD:the petition must be dismissed.
The disqualification which results from the section is conditioned by three circumstances.
First, there must be a subsisting contract between the appropriate Government and the candidate.
Then the contract must be in the course of the trade or business of the candidate and, finally it must be inter alia for the supply of goods to such Government.
Held in the case that as the mining lease was subsisting, the contract if any, was also subsisting.
Further that the mining lease, if it was a contract, was in the course of the business of the respondent.
It was not necessary that a course of business based upon other transactions must have first existed before the offending contract could be said to be in the course of business.
The contract itself could be the start of the business.
Held therefore that the mining lease was not a contract to supply goods to the Government.
There was only a right in the Government to pre empt the minerals and lessee could not begin delivery to the Government until Government served a notice on him stating the quantity preempted and the time within which the supply should be made.
This was only a reservation of a right of pre emption which did not amount to a contract for the supply of goods which could be said to subsist between the parties.


judgement:
Appeal No. 582 of 1961.
Appeal from the judgment and decree dated August 25, 1959 of the Bombay High Court in Appeal No. 774 of 1956.
section G. Patwardhan, section B. Tarkunde, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
A.Y. Vishwanatha Sastri, M. R. Kotwal and Naunit Lal, for the intervener.
May 5, 1964.
The Judgment of the Court was delivered by DAS GUPTA J.
This appeal is by the defendant, the Municipal Corporation for the City of Poona, in a suit for recovery of money.
The Poona Municipality was formerly a Municipality under the Bombay District Municipal Act of 1901 (Act 3 of 1901).
In 1925 it became a Municipal Borough under the Bombay Municipal Boroughs Act of 1925 (Act XVIII of 1925).
Later, under the Bombay provincial Municipal Corporation Act, 1949, Municipal Authority for the City of Poona became a Corporation known by the name of Municipal Corporation for the City of Poona.
It appears that from the time when the City was a Municipality under Act 3 of 1901, an octroi duty was being levied on goods imported within the Municipal limits of the City.
When such goods were exported out of the city municipal limits within specified periods, refund used to be given in respect of the duty so recovered.
The respondent has for many years been carrying on business of securing refund of octroi duty on behalf of persons who had paid the duty and were entitled to refund.
In respect of the period from the 15th February, 1950 to the 14th September, 1950, the respondent made a claim on behalf of his principals, for the refund of Rs. 73,650/ to 181 which, according, to him, they were entitled.
The Munici pality however paid to him only 90 per cent of this amount.
The remaining 10 per cent was deducted in accordance with Rule 18(3) of the Octroi Rules which had been framed by the Municipal Authorities.
The respondent then represented to the Corporation that with effect from the 15th February, 1950, the date from which the Corporation came into existence under the Provincial Municipal Corporation Act, 1949, this deduction of 10 per cent had become invalid in law and claimed that this amount should be paid to him.
The Corporation however refused to concede this claim.
The respondent then brought this suit for recovery of Rs. 7,364/15/ (being 10 per cent of Rs. 73,650/ the amount alleged to have been illegally withheld) with interest.
The main defence raised by the Corporation to the Plaintiff 's claim was that the deduction of 10 per cent was legally valid.
It was further urged that, in any case, the plaintiff who was not the person who paid the amount, was not entitled to bring the suit.
Lastly, it was contended that the suit was barred by limitation.
The trial Court held that the plaintiff was entitled to bring the suit and also that it was not barred by limitation.
It held however that the deduction of 10 per cent from what was paid as tax was valid.
Accordingly, it dismissed the suit.
On appeal by the plaintiff, the District Court, Poona, held, disagreeing with the trial Court, that the deduction of 10 per cent of what had been realised was not valid in law.
It was however of opinion that the plaintiff was not entitled to bring such a suit.
It was also of opinion that the suit was barred by limitation.
In this view, it dismissed the appeal.
The plaintiff then appealed to the High Court of Judicature at Bombay.
The High Court has found in favour of the plaintiff on all the three points raised.
It held that the deduction of 10 per cent was invalid in law, that the plaintiff was entitled to sue, and that the suit was not barred 182 by limitation.
Accordingly, the High Court allowed the appeal, and made a decree in favour of the Plaintiff for Rs. 7,364/15/ with interest thereon at 4 per cent from the date of the suit and interest at the same rate from the date of the judgment, with costs throughout.
The appellant Corporation challenges the correctness of the High Court 's decision on all the three points.
The principal question for decision in this appeal is whether the deduction of 10 per cent as provided for in Rule 18(3) is invalid at least from the 15th February, 1950.
The Rule runs thus: "A deduction of ten per cent shall in all cases be made before refunding the amount of octroi duty on exportation of goods either in transit as per rule 13 or otherwise under rule II (2).
" It is necessary to mention here that the legality of such a deduction prior to February 15, 1950 is not in controversy before us.
We shall proceed on the basis that this provision in Rule18(3) was valid in law prior to the 15th February, 1950.
The question is whether even though valid then, it has ceased to be valid in law.
To find the correct answer to this question it is necessary to be clear first as to the legal basis on which this levy by way of deduction was being made prior to 15th February, 1950.
It appears from exhibit D 72, the copy of the Government resolution dated the 6th March, 1922, that the Poona Municipality started this practice of levying this 10 per cent deduction from February 1921.
The question of its legality appears to have been raised quite early.
The Legal Remembrancer to the Government of Bombay expressed his view on this question in these words: "The special powers conferred in the last sentence of clause (f) of section 48(1) of the Bombay District Municipal Act seems to negative the power of the Municipality (of Shirpur) to make any deduction from the refunds by means 183 of rules regulating the system, for making refunds referred to in the earlier part of the clause.
The charge on refunds appears, how ever, to be a kind of tax which may be imposed under section 59(b) (xi) of the Act.
" On this, the Councillors of, the Municipality passed a resolution that a 10 percent tax should be levied on all octroi refund, under section 59 (b) (xi).
This proposal was submitted to the Government of Bombay for sanction and was duly approved.
It may be mentioned here that section 59 (b) (xi) of Act 3 of 1901 which deals with the question of a Municipality 's powers to impose taxes sets out in the cls.
(i) to (x) various taxes which the Municipalities can impose and then mentions in cl.
(xi) the words "any other tax".
The Government appears to have accepted the view of the Legal Remembrancer that the levy by way of deduction of 10 per cent from; the amount to be refunded should be authorised as a tax on octroi refund,, this being " any other tax" within the meaning of section 59(b)(Xi).
It is no longer open to dispute that after Government 's sanction was received, the Municipality could under the old.
Act legally levy such tax.
It is also not disputed that the deductions that continued to be made under Rule 18(3) were all along made under this authority, as a tax levied under section 59(b) (xi) of the Bombay District Municipal Act, 1901.
The levy of the tax continued even after Act 3 of 1901 ' ceased to be applicable to Poona and it became a Municipal Borough under the Bombay Municipal: Boroughs Act, 1925.
The validity of such: continuation does not also appear to have been challenged The Bombay Provincial Municipal Corporation Act 1949 was applied to Poona on the 15th February, 1950 From that date therefore the powers of taxation of the municipality, became governed by section 127 of the Act.
This section first authorises a Corporation under the Act to impose, (a) property taxes; (b).
a tax on vehicles, boats and animals.
It then mentions in the second sub section certain other taxes which the Corporation may impose: In cls.
(a) to (f) (a) is octroi, (b) a profession tax, (c) a tax on dogs, (d) a theatre tax, (e) a toll on animals and vehicles and (f) mentions "any other 184 tax which the State Legislature has power under the Constitution to impose in the State".
Sub section (4) provides: "Nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution.
" A tax on octroi refund is not thus one of the taxes which the Bombay Municipal Corporation could impose ' It is not one of the specified taxes.
Nor is it a tax which the State Legislature has power under the Constitution to impose in the State.
Apart from this absence of power to impose such a tax, which is clear from the earlier parts of section 127, we have the categorical prohibition in, sub section 4 against the imposition of any such tax by the Corporation.
Mr. Patwardhan next tried to persuade us that even if this levy could not be made under the new Act as a tax, it could be made as a fee.
In support of his argument he drew our attention to section 147 and section 466 of the new Act.
The first sub section of section 466 provides that the Commissioner of the Corporation may make standing orders consistent with the provisions of the Act and the rules and bye laws in respect of the matters specified.
One of the matters specified is "determining the supervision under which, the routes by which and the time within which the goods intended for immediate exportation shall be conveyed out of the City and the fees payable by persons so conveying the goods." [section 466 (1)A(f)].
Section 147 dealing with a controversy, that may arise, whether the importation of some goods into the City has been for the purpose of consumption, use or sale therein, says: "Until the contrary is ,proved any goods imported into the City shall be presumed to have been imported for the purpose of consumption, use or sale therein, unless such goods are conveyed from the place of import to the place of export by such routes, within such time, under such supervision and on payment of such fees therefor as shall be, determined by the standing orders.
" It is obvious that reference to fees in this section is to such fees as may be prescribed by standing orders under 185 the provisions of section 466(1)A(f).
It is unnecessary for us to decide for the purpose of the present appeal, whether the I provision of section 466 for determination of fess payable by persons conveying goods imported into the City is valid in law or not.
Assuming, without deciding, that such a levy can be validly made by way of fees under section 466, what we find is that in fact there has been no standing order prescribing any fees.
It may be mentioned in this connec tion that sub section 2 of section 466 lays down that no order made by the Commissioner under cl.
A of sub section (1) shall be valid unless it is approved by the Standing Com mittee and confirmed by the State Government.
It is not the case of the appellant Corporation that any Standing Order was made at all under section 466 prescribing any fees.
It is not possible therefore to justify the deductions that were made in the present case as a levy of fee.
The appellant relied next on cl.
5(a) of Appendix IV to the Act read with section 493.
Section 493 provides that provisions of Appendix IV shall apply to constitution of the Corporation and other matters specified therein.
Appendix IV is headed "Transitory Provisions" and is plainly intended to deal with the position that arose as a result of the repeal of the old Act.
(section 490).
The relevant portion of cl. 5 (a) is in these words: "Save as expressly provided by the provisions of this Appendix or by a notification issued under paragraph 22 or order made under paragraph 23, (a) any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye law, or form made, issued, imposed or granted under the Bombay District Municipal Act, 1901 or the Bombay Municipal Boroughs Act, 1925 or any other law in force in any local area constituted to be a City immediately before the appointed day shall, in so far as it is not inconsistent with the provisions of this Act, continue in force until it is superseded by 186 any appointment, notification, notice tax, order, scheme, licence, permission, rule, bye law, or form made, issued, imposed or granted, under this Act or any other law as aforesaid as the case may be;" Mr. Patwardhan readily conceded that the 10 per cent deduction, as a tax on octroi refund could not get the pro tection of el.
5(a) for the simple reason that such taxation is on the face of it inconsistent with section 127(4) of the Act.
He asked us, however, to regard this levy as a fee, and on that basis, argued that this should continue in force under cl.
(a) of section 5 of Appendix IV since the levy of such a fee is consistent with the provisions of section 466 of the Act.
If in fact a fee was being realised ' under the old Act, it may be that levy of such fees could continue in force until superseded by any order under the new Act as coming under an order issued "under the District Municipal Act, 1901, or the Bombay Municipal Boroughs Act, 1925".
In fact, however, this was not levied as a fee, but was levied as a tax.
The tax did not become a fee merely because the new Act (Act LIX of 1949) prohibited the imposition of such a tax.
We are clearly of opinion therefor that cl.
5(a) of Appendix IV furnishes no justification for the levy of the ten per cent deduction ' after the 15th February, 1950 when the Act LIX of 1949 with its categorical prohibition in section 127(4) against the imposition by the Corporation of a tax which the State legislature had no power to impose under the Constitution became applicable.
The defence that the deduction of 1 0 per cent of the amount collected as octroi was legally valid has thus been rightly rejected by, the High Court.
We also agree with the High Court 's conclusion ' that the plaintiff was entitled to bring the present suit.
The Poona City Municipality 's Octroi Rules and Bye laws under which the claim, for refund can be made define "a claimant" as a per son "Who produces the duly receipted import bill and the corresponding, export certificates," [Rule 2, cl.
It is not disputed that for the several cases in respect of which this deduction of ten per cent had 'been made, by the Corporation the plaintiff was the person 187 who produced "the duly receipted import bill and the corresponding export certificate." Indeed, it is on that basis that 90 per cent of the amount paid by different exporters was refunded by the Corporation to the claimant.
It is difficult to understand how if the plaintiff was entitled ' to claim and obtain refund 'in respect of 90 per cent of the amount paid, he was not entitled to make the claim with respect to the remaining 10 per cent.
It may be pointed out that as the receipted import bill and the corresponding export certificates in respect of the goods in question have already been made over by the plaintiff to the defendant Corporation, it will not be possible for the merchants who actually imported the goods and then exported them, to make any fresh claim.
For, no claim would be accepted without the receipted import bill and the corresponding export certificates.
Mr. Patwardhan faintly argued that the definition of a claimant in the Rules is only in respect of 90 per cent of the octroi refund.
There is obviously no substance: in this argument.
Rule 1 1 deals with the procedure of claims to refund and requires that claimant should produce a duly receipted import bill and an export certificate relating to such goods.
[Rule II (2) (iv)].
These provisions are entirely independent of Rule 18(3) which lays down that a deduction of ten per cent shall in all cases be made before refunding the amount of octroi duty in certain circumstances.
It is, in our opinion, clear that the plaintiff having made the claim in accordance with the rules was the person entitled to receive what amount was legally refundable.
As we have found that the deduction of ten per cent could not legally be made, in other words, the entire amount paid was refundable, it follows that the plaintiff was the person entitled to obtain the refund and so he was also entitled to bring the suit.
There remains for consideration the appellant 's plea of limitation.
For this plea, the appellant relies on section 487 of Act LIX of 1949.
The material part of the section runs thus: (1) No suit shall be instituted against the Corporation or against the Commissioner, or the 188 Transport Manager, or against any municipal officer or servant in respect of any act done or purported to be done in pursuance or execu tion or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act: (a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any, for the purpose of such suit, or (b) unless it is commenced within six months next after the accrual of the cause of action.
" The benefit of this section would be available to the Corporation only if it was held that this deduction of ten per cent was "an act done or purported to be done in pursu ance or execution or intended execution of this Act.
" We have already held that this levy was not in pursuance or execution of the Act.
It is equally clear that in view of the provisions of section 127(4) (to which we have already referred) the levy could not be said to be "purported to be done in pursuance or execution or intended execution of the Act.
" For, what is plainly prohibited by the Act cannot be claimed to be purported to be done in pursuance or intended execution of the Act.
Our conclusion is that the High Court has rightly held that the suit was not barred by limitation.
All the points raised in the appeal fail.
The appeal is accordingly dismissed.
Anneal dismissed.

summary/full:
The respondent, who had been carrying on the business of securing refund of octroi duty on behalf of persons who had paid duty and were entitled to refund, claimed the refund of money paid as octroi duty by his principals in respect of the period commencing from February 15, 1950, the date from which the appellant became a Municipal Corporation under the Provincial Municipal Corporation Act, 1949.
After deducting ten percent of the amount in accordance with r. 18(3) of the Octroi Rules, framed by the Municipal Authorities, the ap pellant Corporation paid the balance to the respondent.
The representation of the respondent that from the date from which the Corporation had come into existence, the deduction had become invalid in law.
was turned down by the appellant.
Thereupon the respondent filed a suit for recovery of the balance with interest.
The defence was that the deduction was valid; that in any case, the respondent who was not the person who paid the amount, was not entitled to bring the suit, and that the suit was barred by limitation.
The trial court held the respondent was entitled to bring the suit and also that it was not barred by limitation but the deduction was valid and it dismissed the suit.
On appeal, the District Court disagreeing with the trial court, held that the deduction was not valid in law, but the plaintiff was not entitled to bring such a suit and that the suit was barred by limitation and it dismissed the appeal.
On a further appeal the High Court found in favour of the respondent on all the three points and allowed the appeal.
HELD: (i) A tax on octroi refund is not one of the taxes which the Bombay Municipal Corporation could impose.
Apart from the absence of power to impose such a tax, which is clear from the earlier parts of section 127 of the Bombay Act of 1949 there is the categorical prohibition in sub section
(4) against the imposition of any such tax by the Cor poration.
(ii) Assuming, without deciding, that such a levy can be validly made by way of fees under section 466, since no standing order was made under section 466 prescribing any fee, it is not possible to justify the deductions as _ levy of fee.
(iii)The tax did not become a fee merely because the new Act (Bom.
Act 59 of 1949), prohibited the imposition of such a tax.
(iv)Cl. 5(a) of Appendix IV furnishes no justification for the levy often percent deduction after February 15, 1950 when the Act 59 of 1949with its categorical prohibition in section 127(4) against the imposi tion by the Corporation of a tax which the State Legislature had no power to impose under the Constitution became applicable.
(v)The respondent having made the claim in accordance with the rules was the person entitled to receive what amount was legally refundable, and so he was also entitled to bring the suit.
/ 180 (vi)The suit was not barred by limitation.
The benefit of section 487 of Act 59 of 1949 would be available to the Corporation only if it was held that this deduction was "an act done or purported to be done in pursuance or execution or intended execution of the Act."