judgement:
Appeal No. 369 of 1957.
Appeal from the judgment and decree dated the January 27, 1956, of the Allahabad High Court (Lucknow Bench) at Lucknow in Civil Misc.
Application No. 17 of 1954 (0. J.).
C. B. Agarwala and C. P. Lal, for the appellant.
V. D. Misra, for the respondent.
February 16.
, J. This is an appeal against the judgment and order of the High Court of Allahabad on a certificate granted by that court.
The respondent filed a 99 petition under article 226 of the Constitution praying that the imposition of stamp duty by the Collector of Sitapur, of Rs. 85,595/7/ and a penalty of Rs 5/ was against law and could not be realized against him and prayed that the order be quashed.
,, On September 12, 1948, the, respondent executed a wakf by oral recitation of Sigha and then it was written on a stamped paper which was signed by the respondent and attested by, Witness.
On September 15, 1948, it was presented to the Collector for his opinion under section 31 as to the duty chargeable.
As the Collector himself was in doubt, he referred the matter to the Board of Revenue which, after a fairly long time, held that the document was liable to duty in accordance with article 58 of the Stamp Act.
On October 29, 1951, the Collector held that Rs. 85,598/7/ were payable as stamp duty and ordered that it be deposited within fifteen days.
Notice to this effect was served on the respondent on November, 10, 1951.
Thereupon the respondent filed a petition in the High Court under article 226 which was dismissed on November 3, 1952 on the ground that it was premature.
On February 2, 1954, a further notice was served upon the respondent to deposit the amount of the stamp duty plus the penalty of Rs. 5/ within a month otherwise proceedings would be taken against him under section 48 of the Stamp Act.
Thereafter on March 1 1944, the respondent filed a petition under article 226 of the Constitution in the Allahabad High Court challenging the legality of the, imposition of the stamp duty and the penalty and prayed for a writ of certiorari.
A full bench of the High Court quashed the order of the Collector and the State of U.P. has come in appeal to this Court.
The decision of this appeal depends upon the interpretation of ss, 31, 32 and 33 of the Stamp Act.
The relevant portion of section 31 provides: , section 31(1) "When any instrument,, whether executed or not and whether previously stamped or not,, is brought to the Collector and.
the person bringing it applies to have the opinion of that officer as to the duty (if any) with which it is chargeable, and pays a fee of such amount (not exceeding five rupees and 100 not less than eight annas) as the Collector may in each case direct, the Collector shall determine the duty (if any) with which, in his judgment, the instrument is chargeable.
" It is admitted that the document in dispute was submitted to the Collector for his opinion under a. 31 and the opinion of the Collector was sought as to what the duty should be.
Under section 32 of the Act when such an instrument is brought to the Collector, under a. 31 and he determines that it was already fully stamped or he determines the duty which is payable on such a document and that duty is paid, the Collector shall certify by endorsement on the instrument presented that full duty with which it is chargeable has been paid and upon such endorsement being made, the instrument shall be deemed to be fully stamped or not chargeable to duty as the case may be ' Under the proviso to section 32, the Collector is not authorised to make the endorsement if an instrument is brought to him a month after the date of its execution.
Then follows section 33 which is as follows: section 33 "Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom an instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him in order t o ascertain whether it is stamped with a stamp of the value and description required by the law in force in British India when such instrument was executed or first executed: Provided that (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding 101 under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898; (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
(3) For the purposes of this section, in case of a doubt, (a) the collecting Government may determine what offices shall be deemed to be public offices; and (b) the collecting Government may determine who shall be deemed to be persons in charge of public offices.
" The decision of this appeal depends upon the interpretation to be put upon the words "before whom any instrument chargeable. . . . is produced or comes in the performance of his functions".
Dealing with these words the High Court held: " With all respect, therefore, we agree that the learned Judges deciding Chuni Lal Burman 's (1) case took a correct view of the words " is produced or comes in the performance of his functions" used in Section 33 of the Act to mean "that production of the instrument concerned in evidence or for the purpose of placing reliance upon it by one party or the other.
" The High Court was also of the opinion that the object of paying the whole stamp duty was to get the instrument admitted into evidence or its being acted upon or registered or authenticated as provided in sections 32(3), 35, 38(1) and 48(1) of the Stamp Act.
Counsel for the State referred to the various sections of the Act; first to the definition section; Section 2(11) which defines what is "duly stamped"; section 2(14) which defines "instrument" and section 9(12) which defines "executed".
He then referred to section 3 which lays down what "chargeable" means and then to section 17 which provides that all instruments chargeable with duty and executed by any person in British India shall be stamped before or at the time of the execution.
Certain other sections i.e. sections 35 and 38(1) were also (1) A.I.R. 1951 All.
851. 102 referred to and so also sections 40(1)(a), 41, 42 and 48 but in our opinion it is not necessary to refer to these sections.
What has to be seen is what is the consequence of a person applying to a Collector for his determination as to the proper duty on an instrument.
The submission on behalf of the State (appellant) was that if an instrument whether 'stamped or not is submitted for the opinion of the Collector before it is executed, i.e., it is signed, then the Collector is required to give his determination of the duty chargeable and return the document to the person seeking his opinion but if the document is scribed on a stamped paper or unstamped paper and is executed then different consequences follow.
In the latter case it was submitted that under section 33 the Collector is required to impound the document if he finds that it is not duly stamped.
On the other hand it was submitted on behalf of the respondent that on his giving his opinion the Collector becomes functus officio and can take no action under section 33.
It is these two rival contentions of the parties that require to be decided in this case.
After an inordinately long delay, the Collector determined the amount of duty payable and impounded the document.
Power to impound is given in section 33 of the Act.
Under that section any Person who is a Judge or is in charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions is required to impound the instrument if it appears to him not to be duly stamped.
The question is does this power of impounding arise in the present case?.
The instrument in dispute was not produced as a piece of evidence nor for its being acted upon e.g. registration, nor for endorsement as under section 32 of the Stamp Act but was merely brought before the Collector for seeking his advise as to what the proper duty would be.
The words "every person. . before whom any instrument. . is produced or comes in the performance of his functions" refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved and secondly refer to other officers who have to perform any 103 function in regard to those instruments when they come before them e.g. registration.
They do not extend to the determination of the question as to what the duty payable is.
They do not cover the acts which fall within the scope of section 31, because that section is complete by itself and it ends by saying that the Collector shall determine the duty with which, in his judgment, the instrument is chargeable, if it is chargeable at all.
Section 31 does not postulate anything further to be done by the Collector.
It was conceded that if the instrument is unexecuted i.e. not signed, and the opinion of the Collector is sought, he has to give his opinion and return it with his opinion to the person seeking his opinion.
The language in regard to exe cuted and unstamped documents is no different and the powers and duties of the Collector in regard to those instruments are the same, that is, when he is asked to give his opinion, he has to determine the duty with which, in his judgment, the instrument is chargeable and there his duties and powers in regard to that matter end.
Then follows section 32.
Under that section the Collector has to certify by endorsement on the instrument brought to him under section 31 that full duty has been paid, if the instrument is duly stamped, or it is unstamped and the duty is made up, or it is not chargeable to duty.
Under that section the endorsement can be made only if the instrument is presented within a month of its execution.
But what happens when the instrument has been executed more than a month before its being brought before the Collector? Section 31 places no limitation in regard to the time and there is no reason why any time limit should be imposed in regard to seeking of opinion as to the duty payable.
Chapter IV of the Act which deals with instruments not duly stamped and which contains as.
33 to 48, provides for impounding of documents, how the impounded documents are to be dealt with, Collector 's powers to stamp instruments impounded and how the duties and penalties are to be recovered.
It would be an extraordinary position if a person seeking the advice of the Collector and not wanting to rely upon 104 an instrument as evidence of any fact to be proved nor wanting to do any further act in regard to the instrument so as to effectuate its operation should also be liable to the penalties which unstamped instruments used as above might involve.
The scheme of the Act shows that where a person is simply seeking the opinion of the Collector as to the proper duty in regard to an instrument, he approaches him under section 31.
If it is properly stamped and the person executing the document wants to proceed with effectuating the document or using it for the purposes of evidence, he is to make up the duty and under section 32 the Collector will then make an endorsement and the instrument will be treated as if it was duly stamped from the very beginning.
But if he does not want to proceed any further than seeking the determination of the duty payable then no consequence will follow and an executed document is in the same position as an instrument which is unexecuted and unstamped and after the determination of the duty the Collector becomes functus officio and the provisions of section 33 have no application.
The provisions of that section are a subsequent stage when something more than mere asking of the opinion of the Collector is to be done.
Our attention was drawn to the observations of Rankin C. J. in Be Cooke and Kelly (1) but those observations are obiter as the High Court held that the reference under section 57 of the Stamp Act was incompetent.
The doctrine of functus officio was applied in several cases: Collector, Ahmednagar vs , Rambhau Tukaram Nirhali (2).
In that case a certificate of sale had been signed but the certificate was not duly stamped which was pointed out when it was sent to the Sub Registrar for registration.
The Sub Registrar informed the Judge about it and the Judge got back the certificate from the purchaser and thinking that he had power to impound the document and to impose a penalty asked for the opinion of the high Court and it was held that after he had signed it he was functus officio and could not act any further and could not impound it.
The same principle was laid down in (1) Cal. 1171.
(2) A.I.R. 1930 Bom.
105 Paiku vs Gaya (1) and in Chunduri Panakala Rao vs Penugonda Kumaraswami (2) and in our opinion as soon as the Collector determined the duty he became functus officio and he, could not impound the instrument under a. 33 and consequential proceedings could not ') therefore, be taken.
The appeal is therefore dismissed with costs.
Appeal dismissed.

summary/full:
The respondent executed an instrument and presented it to the Collector for his opinion under section 31 Stamp Act as to the duty chargeable.
The Collector,, after a reference to the Board of Revenue, determined the duty payable.
He then impounded the instrument and ordered that the ditty be deposited within 98 fifteen days.
Later, a notice was served upon the respondent to deposit the amount of stamp duty and penalty within one month and threatening that in default proceedings would be taken to recover them as arrears of land revenue.
The respondent challenged the legality of the impounding of the instrument and demand of stamp duty and penalty.
Held, that after determination of the stamp duty the Collector became functus officio and could not impound the instrument or demand duty and penalty.
Under section 31 the Col lector has merely to determine the proper amount of duty.
If the person executing the instrument wants to effectuate the instrument or to use it for purposes of evidence he has to make up the duty and under section 32 the Collector makes the necessary endorsement.
Section 33 empowers every person in charge of a public office before whom an instrument chargeable with duty is produced or comes in the performance of his functions to impound the instrument if it is not duly stamped.
When an instrument is presented to the Collector under section 31 for determination of duty it cannot be said that it "is produced or comes in the performance of his functions" as contemplated by section 33.
These words refer firstly to production before judicial or other officers performing judicial functions as evidence of any fact to be proved, and secondly refer to other officers who have to perform any function in regard to those instruments when they come before them, e.g., registration.
In Re Cooke and Kelly, Cal. 1171, held obiter.
Collector, Ahmednagar vs Rambhau Tukaram Nirhali, A.I.R. , Paiku vs Gaya, I.L.R. and Chunduri Panakala Rao vs Penugonda Kumaraswami, A.1,R. , referred to.


judgement:
Appeal No. 31 of 1957.
Appeal from the judgment and order date September 27, 1955, of the Jammu and Kashmir High Court in Misc.
Application No. 23 of 1955.
Jaswant Singh, Advocate General for the State of Jammu and Kashmir and R. H. Dhebar, for the appellant.
section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for respondent.
February 23.
The Judgment of the Court was delivered by SARKAR, J.
The respondent is a Civil Engineer who held various positions under the appellant, the Government of the State of Jammu and Kashmir.
On September 8, 1954, while the respondent was holding the post of Development Commissioner, he was placed under suspension by an order made by the appellant on that date.
Later, the appellant passed another order on February 12, 1955, demoting the petitioner to the post of a Divisional Engineer.
On May 12, 1955, the respondent moved the High Court of Jammu and Kashmir under article 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir, for a writ directing the appellant not to give effect to the order dated February 12, 1955, and to recognise him as the Chief Engineer, the substantive post held by him when he was suspended, with effect from the date of suspension and with all the emoluments of that office.
The High Court issued the writ as prayed.
The State appeals from the judgment of the High Court, 971 In the view that, we think, must be taken of this case, it is unnecessary to go into the facts a great deal.
At one stage of his career under the appellant, the respondent held a job of some responsibility in what was called the Sindh Valley Hydro Electric Scheme.
This Scheme was for generating electric power by dams erected in the Sindyh water course and for using the water for irrigation purposes.
The work on this Scheme seems to have commenced some time ago.
The respondent was connected with the Scheme from 1949 till he was transferred from the work in 1953.
It appears that the appellant was dissatisfied with the Progress of the work and the manner in which it had been carried out and decided to establish a Commission of Inquiry (a) to investigate into the reasons for (i) progressive rise in the estimates, (ii) the defective planning and the delay in the execution of the work and (iii) the other irregularities and (b) to fix responsibility upon the persons concerned and make appropriate recommendations.
Pending the investigation various officers associated with the planning and execution of the Scheme including the respondent, were placed under suspension on September 8, 1954.
Thereafter on October 20, 1954, a commission was set up by the appellant consisting of various persons.
The Commission made certain enquiries and eventually submitted its report to the appellant.
The appellant then made the order demoting the respondent purporting to act on the basis of the report.
It is not necessary to set out the facts any more.
The respondent, in his application for the writ, questioned the validity of the orders suspending and demoting him on these grounds.
He alleged that the Commission did not conduct the enquiry according to the rules of natural justice.
He said that he was not even informed of the charges against him nor given a proper hearing and that if he had been given proper opportunity, he would have proved that he had not been at fault at all.
He also said that the appointment of the Commission could only have been made under section 2 of the Public Servants (Inquiries) Act, 1977 124 972 (Kashmir era), and must, therefore, be deemed to have been so made.
He complained that the provisions of this Act were not observed by the Commission in making the enquiry.
Lastly, he said that the respondent could be reduced in rank only in accordance with the procedure laid down in the Kashmir Civil Service Rules passed by the State Council Order No. 81 C of 1939 and this procedure had not been followed.
In the High Court, the question as to whether these Rules had the status of law seems to have been debated at great length.
The High Court took the view (that they had.
We will proceed on the basis that the High Court was right and the allegations made by the respondent in his petition had been substantiated.
Now, the High Court was moved to exercise its powers under article 32 (2A) of the Constitution.
The order made by it cannot be upheld if it was not justified by that provision.
This is not in dispute.
That provision is in these terms: article 32(2A).
" Without prejudice to the powers conferred by clauses (1) and (2), the High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases any Government within those territories, directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by this Part.
" The High Court can then exercise its powers under article 32 (2A) only " for the enforcement of any of the rights conferred by this Part ".
The Part referred to is Part III and the rights conferred by it are the fundamental rights.
Therefore, the High Court can act under cl.
(2A) of article 32 only to enforce a fundamental right.
The only fundamental right, however, on the violation of which learned counsel for the respondent could rely in support of the order of the High Court was that conferred by article 14, namely, the right to the equal protection of the laws.
He said that the 973 respondent was entitled to have the procedure prescribed by the Kashmir Civil Service Rules followed before the order demoting him could be made and as that procedure was not followed, his client had been denied the equal protection of the laws.
It seems to us that even if the Rules are a law and the respondent has not been given the benefit of them, all that can be said to have happened is that the appellant has acted in breach of the law; But that does not amount to a violation of the right to the equal protection of the laws.
Otherwise, every breach of law by a Government would amount to a denial of the equal protection of the laws.
We are not aware of any authority in support of that proposition and none has been cited to us.
Nor are we able to find any support for it in principle.
It is not the respondent 's case that other servants of the appellant had been given the benefit of those Rules and such benefit has been designedly denied only to him.
It seems to us that the appeal must be allowed on the simple ground that the respondent 's petition does not show a violation of any fundamental right.
The High Court had no power to act under article 32 (2A) at all.
We think it right to point out that articles 226 and 311(2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time.
No question of the respondent 's application being maintainable in view of these articles, therefore, arises.
The appeal is accordingly allowed.
There will be no order as to costs.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The Government of Jammu and Kashmir on the basis of the report of the commission of enquiry set up by it demoted the respondent who had been suspended earlier.
The respondent moved the Jammu and Kashmir High Court under article 32(2A) of the Constitution of India as applied to the State of Jammu and Kashmir for a writ, inter alia, questioning the validity of the order suspending and demoting him, alleging violation of rules of natural justice by the commission of enquiry and breach of statutes and rules of service.
Articles 226 and 311(2) of the Constitution of India bad not been applied to the State of Jammu 970 and Kashmir.
The High Court acting under article 32(2A) set aside the orders suspending and demoting the respondent.
Held, that the High Court had no powers to act under article 32(2A) of the Constitution of India as the writ petition did not disclose a violation of any fundamental right.
Held, further, that the breach of a law by the ' Government, if any, did not amount to a denial of the equal protection of the laws, as it had not ever been alleged by the respondent that the benefit of that law had been designedly denied only to him.


judgement:
Appeals Nos. 105 and 106 of 1957.
Appeals from the judgment and decree dated April 8, 1954, of the Assam High Court in Appeal from Appellate Decree Nos. 41 and 54 of 1951.
L. K. Jha and D. N. Mukherjee, for the appellant.
Naunit Lal, for respondents Nos. 1 to 12.
February 23.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the lands covered by the said sale deeds.
His case was that Madhab Temple at Hajo is a very ancient temple and the Assam Rajahs had granted lands to the Bardeuries (temple officials) to enable them to render service to the deities installed in the said temple.
The lands thus granted to the temple officials were endowed lands and the same had been burdened with service to the temple; in other words, the grantees were entitled to enjoy the lands on condition that they rendered the requisite service to the temple.
As a corollary of the 949 burden imposed on the grantees by the said grant the lands were inalienable to strangers though they could be transferred to any of the Bardeuries of the temple.
According to the appellant the said lands had originally been granted to Hem Kanta Sarma and Uma Kanta Sarma who were then the worshippers at the temple.
The respondents who were impleaded to the" suit represented the heirs of the original grantees and assignees from those heirs.
The appellant has brought this suit on behalf of the Madhab Temple at Hajo, and his case is that the alienations made by the worshippers in favour of non worshippers were invalid and so the temple was entitled to claim a declaration as set out in the plaint and to ask for possession of the lands unauthorisedly transferred to the predecessors in title of the respondents.
The lands in suit have been described in detail and specified in three Schedules called Ka, Kha and Ga. The respondents denied this claim.
They urged that the original grants were not burdened with service and were alienable without any restriction whatever.
They also pleaded that they had purchased the lands bona fide for valuable consideration and without notice of any such burden or obligation subsisting on the lands.
Besides, they added a plea of limitation in respect of the lands specified in Schedules Kha and Ga. The trial court upheld the appellant 's contention and made a finding that the lands in suit were burdened with service with the result that the impugned alienations were void.
It also found that the purchasers had not shown that they had made adequate enquiries and so their plea that they were purchasers without notice could not be sustained.
On the question of limitation, however, it accepted the plea raised by the respondents in respect of the lands described in Schedules Kha and Ga. In regard to the lands described in Schedule Ka the trial Court directed that the appellant should obtain delivery of possession of the said lands through the transferor defendants or their heir if the latter were willing to render service to the temple; otherwise the appellant was held entitled to get independent possession and the said transferors 950 would be deemed to have relinquished their interest in the said lands.
This decree gave rise to cross appeals before the District Court.
The said appeals were heard together and the appellate court confirmed the decree passed by the trial court in respect of Kha and Ga lands.
In regard to the lands in Schedule Ka the appellate court maintained the declaration in favour of the appellant but discharged the conditional decree for possession because it held that in regard to the said lands the appellant must be left to move the sovereign authority to sue for resumption of the said lands.
This appellate decree became the subject matter of two appeals and cross objections before the High Court.
The High Court has held that the finding concurrently recorded by the courts below in regard to the burden subsisting on the lands in question was based on evidence most of which was hearsay and the whole of which taken together was meager and insufficient in law to sustain the said finding.
The High Court has also criticised the courts below for placing the onus of proof in regard to the character of the lands on the respondents.
According to the High Court it was for the appellant to prove his case in respect of the nature of the original grant.
The High Court has then taken into account the fact that the evidence shows that many of the lands were transferred to strangers and that was inconsistent with the case made out by the appellant.
Besides, the High Court has referred to the fact that the lands in question are described as Brahmottar lands in revenue papers and that clearly shows that the said lands are heritable and transferable without restriction.
On the question of limitation the High Court has accepted the plea of the respondents that Article 144 of the Limitation Act applied.
As to the declaration granted to the appellant by the District Court the High Court has observed that the said declaration was absolutely futile.
In the result the suit preferred by the appellant has been dismissed with costs throughout.
It is this decision which is challenged before us by the appellant with a certificate granted to the appellant by the High Court in that behalf 951 The principal point which has been urged before us by Mr. Jha for the appellant is that the High Court was in error in coming to the conclusion that lands in suit which are admittedly described as Brahmottar lands in the revenue records are transferable without, any restriction.
In support of its conclusion the High Court has referred to the history of the lands, the nature of the initial grant and the recognition of the title of the grantees by the British Government after it conquered Assam and of the several steps taken thereafter.
This history has been set out in detail in the Assam Land Revenue Manual(1).
From this introduction it appears that Nisf khiraj (half revenue paying) estates as distinguished from Khiraj (full.
revenue paying) estates form a class of tenure found only in Assam Proper and they have a special history of their own.
In 1834, shortly after Assam was annexed by the Government of India it ruled that " all rights to hold lands free of assessment founded on grants made by any former Government must be considered to have been cancelled by the British conquest.
All claims therefore for restoration to such tenure can rest only on the indulgence of the Government without any right.
" This ruling clearly and emphatically brought out the legal consequences of political conquest.
Grants made by the previous Governments came to an end and their continuance after the conquest would depend upon the indulgence of the succeeding Government.
It appears that prior to the conquest of Assam under the previous regime the predecessors in interest of the then owners of Nisf khiraj estates held their lands revenue frce and called themselves lakhirajdars.
They continued to describe themselves as such even after their lands were resumed and assessed at half rates.
Mr. Scott, the first British Commissioner of Assam, refused to recognise any claims to hold land revenue free.
Research made by him in that behalf showed that even prior to the Burmese conquest of Assam lakhiraj land had occasionally been assessed at five annas a pura (four bighas) in timer, of trouble by (1) Vol. 1, 6th Ed., p. lxvii.
952 the Assam Rajahs themselves.
Basing himself on this precedent Mr. Scott fixed the assessment of the said land at the said rates and subsequently increased it to seven or eight annas a pura.
This imposition war, known as Police Barangani.
Captain (afterwards General) Jenkins became the Commissioner of Assam in 1834.
The lakhirajdars objected to pay the tax imposed on their lands by Mr. Scott on the ground that Mr. Scott intended to levy the said tax temporarily and had promised Lo remit it.
This dispute was referred by General Jenkins to the Government of India who replied that they saw no reason to believe that the tax imposed by Mr. Scott was intended to be temporary, and they added that if it was Mr. Scott 's intention it would Dot be valid because Mr. Scott had not obtained the sanction of the Government in that behalf.
Even so, the Government of India directed that a full enquiry should be made into all claims to rent free lands on the part of Rajahs or as debotter or dharmottar or on any other plea throughout the districts of Assam and Captain Bogle was appointed Special Commissioner to make the said enquiry under Regulation III of 1818.
This enquiry had to be held subject to the control and orders of General Jenkins.
The Government prescribed certain principles to guide Captain Bogle in his enquiry.
One of these principles was that pending the lakhiraj enquiry Mr. Scott 's moderate rates were to be levied.
The orders issued by the Government in that behalf clearly declared the right of the Government to assess all lands held revenue free in Assam Proper, but subject to this right Government were prepared to grant the indulgence of restoring to the lakhirajdars all lands held by them and to confirm them in possession.
It appears that the instructions issued by the Government were not fully carried out by General Jenkins.
Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say, 953 lands devoted to some religious purpose not being temple lands.
In respect of the former he confirmed the grants revenue free.
In respect of the latter be simply confirmed the grantees in possession subject to the payment of Mr. Scott 's favourable rates until, Captain Bogle 's enquiry was terminated and final orders passed in that behalf It is curious that though the enquiry of Captain Bogle went on for many years it was not formally completed till the year 1860.
By that time the instructions issued by the Government of India at the commencement of the enquiry were lost sight of.
No report was submitted to the Government by the enquiring officer and final orders of the Government of India were not obtained on the question whether the holders of brahmottar and dharmottar lands were to hold their lands at the rates fixed by General Jenkins.
In consequence holders of these lands have ever since continued to hold at half rates without any formal decision by the Government of India having been reached in that behalf.
Subsequently the holders ' rights to continue to hold the lands at the said rates have been recognised and their holdings have been declared to be heritable and transferable by the Government of India in 1879.
This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf khirajdar of the present day " is ordinarily a person whose lands were claimed by his ancestors revenue free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose".
It appears that the word " Nisf khiraj " was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates.
This word was presumably invented to avoid confusion caused by the use of the word " lakhiraj which had been applied to them prior to 1871.
The history of this tenure is similarly stated in the Government Gazette relating to Assam as well as by Baden Power (Vol.
III, pp.
406 following).
954 At this stage it would be necessary to refer to the relevant provisions of Regulation 1 of 1886,.
It in called the Assam Land and Revenue Regulation of the said year.
Section 3(g) of this Regulation defines " land holder " as meaning any person deemed to have acquired the status of a land holder under section 8 ; while section 8 (1) provides, inter alia, that any person who has, before the commencement of this Regulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate, or in a revenue free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land.
That takes us to section 9 which provides that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in cls.
(a), (b) and (c) of the said section.
It is unnecessary to refer to the said exceptions.
It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under section 8 (1) (a) and became land holders under section 3 (g).
The inevitable consequence of this position is that section 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, heritable and transferable.
This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group.
As the High Court has found.
and that is no longer in dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restrictions 955 This aspect of the matter was completely ignored by the trial court and the appellate court, and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.
Besides, the High Court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus 'Was on the appellant and not on the respondents to prove the contrary.
Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question.
That was another infirmity in their decision.
It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question.
We are also satisfied that the declaration granted by the District Court was futile.
Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.
In the result the appeals fail and are dismissed with Costs.
Appeals dismissed.

summary/full:
The plaintiff appellant filed a suit alleging that the lands in suit were unauthorisedly transferred to the predecessors in title 121 948 of the respondents.
His contention was that the lands were granted to the Bardeuries (officials) of a certain ancient temple in Assam in order to enable them to render service to the deities installed in the temple and as such the lands were inalienable to strangers other than the Bardeuries.
Held, that in view of the history of land tenure in Assam and by virtue of the relevant statutory provisions of Assam Land and Revenue Regulation (Reg. 1 of 1886) the lands must.
be deemed to be heritable and transferable without any restriction.
The transferor Bardeuries, who held the lands described as brahmottar lands in revenue records, fell under section 8(1)(a) and became " land holders " under section 3(g) of the Regulation and consequently section 9 applied to them statutorily recognising their rights in the lands to be permanent, heritable and transferable.
To prove the plaintiff appellant 's contention that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary.


judgement:
l Appeal No. 89 of 1952.
Appeal by 'special leave from the Judgment dated June 27, 1951, of the Labour Appellate Tribunal of India at Calcutta in Appeals Nos.
94 and 142 of 1950 arising out of the Award of the Second Industrial Tribunal, Madras (published in the Fort St. George Gazette, Madras, dated October 3, (1950).
N. C. Chatterjee (section N. Mukherjee, with him) for the appellant.
section C. C. Anthoni Pillai (President, Madras Labour Union) for the respondents.
December 2.
The Judgment of the Court Was delivered by MAHAJAN J.
220 MAHAJAN J.
This is an appeal by special leave from a decision dated 27th June, 1951, of the Labour Appellate Tribunal of India at Calcutta in appeals Nos. 94 and 142 of 1950, arising out of the award of the Second Industrial Tribunal, Madras.
The relevant facts and circumstances giving rise to the appeal are as follows: On 1st November, 1948, 859 night shift operatives of the carding and spinning department of the Carnatic Mills stopped work, some at 4 p.m., some at 4 30 p.m. and some at 5 p.m.
The stoppage ended at 8 p.m. in both the departments.
By 10 p.m, the strike ended completely.
The apparent cause for the strike was that the management of the Mills had expressed its inability to comply with the request of the workers to declare the forenoon of the 1st November, 1948, as a holiday for solar eclipse.
On the 3rd November, 1948, the management put up a notice that the stoppage of work on the 1st November amounted to an illegal strike and a break in service within the meaning of the Factories Act (XXV of 1934) and that the management had decided that the workers who had participated in the said strike would not be entitled to holidays with pay as provided by the Act.
This position was not accepted by the Madras Labour Union.
The Madras Government by an order dated the 11th July, 1949, made under section 10(1) (c) of the (XIV of 1947), referred this dispute along with certain other disputes to the Industrial Tribunal, Madras.
The adjudicator gave the award which was published in the Gazette on 12th October, 1950.
By his award the adjudicator found that there could be little doubt that the stoppage of work by the night shift workers on the night of the last November,, 1948, was a strike, that it was an illegal strike, since the textile industry is notified as a public utility industry and there could be no legal strike without a proper issue of notice in the terms prescribed by the .
No such notice had been given.
In view of this finding he upheld the view of the management that the continuity of service of the workers was broken by the interruption 221 caused by the illegal strike and that as a consequence the workers who participated in such strike were not entitled to annual holidays with pay under section 49 B (1) of the Factories Act.
He, however, considered that the total deprivation of leave with pay ordered by the management was a severe punishment and on the assumption that he had power to scrutinize the exercise of the discretion by the management in awarding punishment, reduced the punishment by 50 per cent and held that the workers would be deprived of only half their holidays with pay.
The decision of the management was varied to this extent.
The Mills as well as the Union appealed against this decision to the Labour Appellate Tribunal.
That Tribunal upheld the contention of the Mills that the adjudicator had no power to interfere with and revise the, discretion of the management exercised by it under section 49 B (1).
It also upheld the contention of the Union that what happened on the night of the 1st November did not amount to a strike and did not cause any interruption in the workers ' service.
This is what the Tribunal said: "It would be absurd to hold that non permitted absence from work even for half an hour or less in the course of a working day would be regarded as interruption of service of a workman for the purpose of the said section.
We are inclined to hold that the stoppage of Work for the period for about 2 to 4 hours in the circumstances of the case is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned.
" In the result the appeal of the Union on this point was allowed and it was ordered that holidays at full rates as provided for in section 49 A of the Factories Act will have to be calculated in respect of the operatives concerned on the footing that there was no break in the continuity of their service by the stoppage of work on 1st November, 1948.
In this appeal it was contended on behalf of the Mills that on a proper construction of section 49 B (1) 29 222 of the Factories Act: (XXV of 1934) the management was right in its decision that the continuity of service was broken by the interruption caused by the illegal strike and that the workers were not entitled to annual holidays with pay under the said section inasmuch as they would not have completed a period of twelve months ' continuous service in the factory, and that the non permitted absence as a result of concerted refusal to work even for 2 to 4 hours in the course of a working day amounts to an illegal strike and consequently an interruption of service of a workman for the purpose of section 49 B.
In our judgment, this contention is well founded.
Section 49 B provides "Every worker who has completed a period of twelve months continuous service in a factory shall be allowed, during the subsequent period of twelve months, holidays for a period of ten, or, if a child, fourteen 'Consecutive days, inclusive of the day or days, if any, on which he is entitled to a holiday under subsection (1) of section 35. " "Explanation.
A worker shall be deemed to have completed a period of twelve months continuous service in a factory notwithstanding any interruption in service during those twelve months brought about by sickness ', accident or authorized leave not exceeding ninety days in the aggregate for all three or by a lookout, or by a strike which is not an illegal strike, or by intermittent periods of involuntary unemployment not exceeding thirty days. . . .
It is clear that the benefit of this section is not avail able in cases where the interruption in service is brought about by an illegal strike.
Section 2 q ) of the Industrial, Disputes Act (Act XIV of 1947) defines "strike" as meaning "a cessation of work by a body of persons employed in any industry acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons who are or have 223 been so employed to continue to work or to accept employment.
The adjudicator found on the evidence and circumstances of the case that there was concert and combination of the workers in stopping and :refusing resume work on the night of the 1st November ' He observed that the fact that a very large number of leave applications was put in for various reasons pointed to the concerted action and that the appli cation given by the workers and their representatives also indicated that they were acting in combination both in striking and refusing to go back to work on the ground that they were entitled to leave for the night shift whenever a half a day 's leave was granted to the day shift workers.
He further hold that the refusal of the workers to resume work in spite of the attempts made by the officers and their own Madras Labour Union representatives indicated that they were not as a body prepared to resume work unless their demand was conceded.
In our opinion, the conclusion reached by the adjudicator was clearly right and the conclusion cannot be avoided that the workers 'were acting in concert.
That being so, the action of the workers on the night of the 1st November clearly fell within the definition of the expression "strike" in section 2(q) of the .
We have not been able to appreciate the view expressed by the Appellate Tribunal that stoppage of work for a period of two to four hours and such non permitted absence from work cannot be regarded as strike.
Before the adjudicator the only point raised by the Union was that it was a spontaneous and lightning strike but it was not said by them that stoppage of work did not fall within the definition of " 'strike" as given in the Act.
It cannot be disputed that there was a cessation of work by a body of persons employed in the Mills and that they were acting in combination and their refusal to go back to work was concerted.
All the necessary ingredients,.
therefore, of the definition exist in the present case and the stoppage of work on 1st November, 224 1948, amounted to a strike.
It was not a case of an individual worker 's failure to turn up for work.
It was a concerted action on the part of a large number of workers.
The Appellate Tribunal was thus in error in not regarding it as a strike and it had no discretion not to regard what in law was a strike as not amounting to a strike.
If it cannot be denied that the stoppage of work on 1st November, 1948, amounted to a strike, then it was certainly an illegal strike because no notice had been given to the management, the Mills being a public utility industry.
It was contended by the President of the Union, who argued the case on behalf of the workers, that the Factories Act had no application to this case, because by a notification of the Government of Madras dated 23rd August, 1946, the Buckingham an Carnatic Mills had been exempted from the provisions of Chapter IV A of the Act and the provisions of sections 49 A and 49 'B were not therefore attracted to it and that no substantial question of law in respect to the construction of the section fell to be decided by this Court and that being so, this Court should not entertain this appeal under article 136 of the Constitution.
This contention has no validity.
The Mills were granted exemption from the provisions of Chapter IV A of the Factories Act because their leave rules were in accordance with the provisions of Chapter IV A of the Factories Act.
These rules being in similar terms, the decision of the matter depends on the construction of the rules and this in volves a substantial question of law.
Reliance was next placed on section 49 A of the Factories Act which provides that the provisions of the new Act would not operate to the prejudice of any rights which the workers were entitled to under the ' earlier rules and it was argued that under the leave rules of the Mills which prevailed prior to the coming into force of the Factories Act, the workers were entitled to privilege leave and there was no provision in those rules similar to the one that has been made in section 49 B or in the new rules and that the Mills 225 had no right to deprive them of leave by reason of the strike.
This contention cannot be sustained because section 49 A (2) of the Factories Act has no application to the case of the Carnatic Mills in view of the notification ' dated 23rd August, 1946.
Lastly, it was urged that the stoppage of work on 1st November, 1948, was not a concerted action on the part of the workers and that several workers in their own individual capacity wanted leave on that date.
In our opinion, in view of the facts and circumstances detailed in the adjudicator 's award this contention cannot be seriously considered.
We concur in the view of the facts taken by the adjudicator that the action of the 859 workers on the night of 1st November, 1948, fell within the definition of the word "strike" as given in section 2(q) of the and it was an illegal strike and the workers thus lost the benefit of holidays that they would have otherwise got under the rules.
The learned counsel for the appellant undertook on behalf of the management ex gratia that it would condone the default of the workers on 1st November, 1948, and the cessation of work on that night would not be treated as depriving them of the holidays under the rules and we appreciate the spirit in which this undertaking was given and hope that the workers would also take it in that spirit.
The result is that the appeal is allowed, and the decision of the Labour Appellate Tribunal on this point is set aside.
In the circumstances of this case we make no order as to costs.
Appeal allowed.

summary/full: Where the night shift operatives of a department of a textile mills stopped work from about 4 p.m. up to about 8 p.m. on a certain day, the apparent cause of the strike being that the management of the mills had expressed its inability to comply with the request of the workers to declare the forenoon of that day as a holiday for solar eclipse, and it was found that the stoppage of work was the result of concerted action: Held (i) that the stoppage of work fell within the definition of a "strike" in section 2 (q) of the ; (ii) that the strike was an illegal strike as the textile mills was a public utility industry and no notice had been given to the management, even though the refusal to work continued only for a few hours; and (iii) that the continuity of service of the workers was interrupted by this illegal strike and they were not entitled to claim holidays with pay under section 49 B (1) of the Indian Factories Act, 1934.


judgement:
Appeal No. 624 of 1960.
Appeal by special leave from the judgment and order dated May 30, 1960 of the Mysore High Court in Civil Revision Petition No. 1098 of 1959.
K. R. Karanth and R. Gopalakrishnan, for the appellant.
A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for the respondent.
B. R. L. Iyengar and T. M. Sen, for the State of Mysore (On Notice issued by the Court).
February 27.
The Judgment, of the Court was delivered by SHAH, J. Smt.
Vimla hereinafter referred to as the plaintiff filed suit No. 73 of 1956 in the court of the Subordinate Judge, South Kanara, for a decree for 1016 possession of lands, buildings, house sites described in sch.
A and movable properties described in sch.
B and for mesne profits in respect of properties described in sch.
A and for a decree for possession and management and for account of the properties described in sch.
C and institutions alleged to be the private family religious endowments in sch.
D. The plaintiff claimed that on the death of her father Shri Dharmasthala Manjayya Heggade on August 31, 1955, she became entitled to the properties in suit but the defendant wrongfully possessed himself of those properties.
The plaintiff valued the properties in schs.
C and D under section 28 of the Madras Court fees and Suits Valuation Act, 1955 at Rs. 21,000/ and paid a court fee of Rs. 275/ .
She valued the lands in schedule A for purposes of jurisdiction at 30 times the assessment and separately valued the buildings and paid court fee on that footing.
On June 28, 1956, the Subordinate Judge ordered on an objection raised by his office that the amount of Rs. 34,577/ paid as court fee by the plaintiff was adequate.
Then followed a course of proceedings for which not many precedents may be found.
On September 9, 1950, the defendant filed his written statement raising an objection inter alia to the valuation of the properties in suit and the court fee exigible on the claim.
The trial court then raised an issue about the adequacy of the court fee, paid by the plaintiff.
On February 13, 1957, the defendant applied for the appointment of a Commissioner to value the properties.
The court dismissed the application and declared that the court fee paid was adequate.
In Revision Petition 272 of 1957 preferred by the defendant to the High Court of Judicature at Bangalore, the order passed by the Subordinate Judge was set aside and it was directed that the trial court do " ascertain the value of the properties for purposes of court fee in accordance with law after giving full opportunity to the parties and if need be by appointing a Commissioner to ascertain the present market value of the suit Schedule properties and decide the issue afresh on merits.
" Pursuart to this direction, a Commissioner was appointed by 1017 the Subordinate Judge.
The Commissioner submitted his report as to valuation of the properties.
Objections were raised by the defendant to that report and a further report was submitted by the Commissioner.
On the direction of the Subordinate Judge, a supplemental report was submitted by the Commissioner.
After hearing the parties, the Subordinate Judge held that the properties described in sch.
D were " extra commercial " and fixed court fee was exigible in respect of the claim for possession thereof, that pro perties described in sch.
D were " trust properties " and section 28 of the Madras Court fees and Suits Valuation Act applied thereto as the dispute related to the right of management between persons claiming to be rival trustees, that the houses built on revenue paying lands had to be valued according to their market value and not at 30 times the land assessment and that the lands in sch.
A were worth Rs. 7,74,665/ and the house sites were worth Rs. 27,625/ .
The plaintiff paid the additional court fee as directed by the court,.
Against the order passed by the Subordinate Judge, the plaintiff and the defendant applied by separate petitions in revision to the High Court of Mysore.
The High Court heard the Advocate General of the State and substantially confirmed the order passed by the Subordinate Judge except as to an institution described as " Nelliyadi Beedu ", in respect of which the High Court directed the trial court to determine whether the institution was " extra commercial " after giving an opportunity to both parties to put forth their contentions and to lead evidence in that behalf.
Against that order of the High Court, this appeal has been preferred by the defendant with special leave under article 136 of the Constitution.
The Court fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action.
By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of 1018 its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years.
We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint.
Whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State.
How by an order relating to the adequacy of the court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate.
Again, the jurisdiction in revision exercised by the High Court under section 1 15 of the Code of Civil Procedure is strictly conditioned by cls.
(a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction.
The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of court fee payable on the plaint.
But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court.
Reliance in support of that contention is placed upon sub section
(2) of section 12.
That sub section, in so far as it is material, provides: " Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim. plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient.
All questions arising on such pleas shall 1019 be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.
If the court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the court 's decision and the deficit fee shall be paid. . " But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision on that question.
Our attention has not been invited to any provision of the Madras Court fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the court of first instance on the matter of court fee payable on a plaint.
The Act, it is true by section 19, provides that for the purpose of deciding whether the subject matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon.
The anxiety of the Legislature to collect court fee due from the litigant is manifest from the detailed provisions made in ch.
III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision, against an order determining the court fee payable.
In our view, the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defend.
ant, when no question of jurisdiction was involved.
The appeal therefore fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The question was whether the defendant was entitled to raise a grievance and contest the valuation of the properties in dispute as if it were a matter in issue between the plaintiff and himself and could seek to invoke the High Court in its revisional jurisdiction against the order adjudging 'court fees payable on the plaint.
Held, that the Court Fees Act is enacted to collect revenue and not to be used as a technical weapon by the defendant for obstructing the progress of the suit by approaching the High Court in its revisional jurisdiction against the order determining and adjudging court fees payable on the plaint.
That section 12(2) of the madras Court Fees Act, 1955, only enabled the defendant to assist the court in arriving at a just decision on the question of court fees payable on the plaint.
That in the instant case the High Court grievously erred in entertaining revision application on the question of court fees at the instance of the defendant when no question of jurisdiction was involved.


judgement:
Appeal No. 451 of 1960.
Appeal from the judgment and order dated September 18, 1957, of the Bombay High Court in I.T.R. No. 8 of 1957.
K. N. Rajagopal Sastri and D. Gupta, for the appellant.
894 Bishan Narain, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent,.
February 21.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal pursuant to a certificate of the High Court of Bombay under section 66A(2) of the Indian Income tax Act (hereinafter called the " Act ").
For the year of assessment 1949 50 the respondent was assessed to a sum of Rs. 1,80,646/14/ as income tax and super tax on June 2, 1954.
A notice of demand under section 29 of the Act was served on the respondent to pay that amount on or before July 17, 1954.
On his application the respondent was allowed to pay by instalments.
The last instalment of Rs. 30,646/14/ was payable on or before March 20, 1955.
As there was a default in the payment of this instalment the Income tax Officer on March 31, 1955 imposed a penalty of Rs. 3,000/ under section 46(1) of the Act.
On April 20, 1955 the respondent filed an appeal to the Appellate Assistant Commissioner but by that date the last instalment had not been paid and it was paid on May 16, 1955.
The Income tax Officer raised a preliminary objection before the Appellate Assistant Commissioner that the appeal was not competent 'because the last instalment of the tax had not been paid.
This was upheld by the Appellate Assistant Commissioner.
Against this order the respondent took an appeal to the Income tax Appellate Tribunal which held that the right of appeal was conferred by section 30(1) of the Act and is not taken away by section 30(2) of the Act, only the remedy is barred.
It further held that as the right had not been destroyed the appeal became good appeal as soon as the assessee paid the arrears of tax and the only effect of the payment on May 16, 1955, was that the appeal shall be taken to have been preferred before the Appellate Assistant Commissioner on that date and it was then for the Appellate Assistant Commissioner to decide whether it was a fit case for extension of time and condonation of delay.
The Tribunal therefore directed the.
Appellate Assistant Commissioner to dispose of the appeal in accordance with law.
At the instance of the Commissioner 895 of Income tax, who is.
the appellant before us, the Tribunal stated the following question of law to the High Court: " Whether the appeal filed before the Appellate Assistant Commissioner on 20th April, 1955, became a proper and complete appeal though barred by limitation and the Appellate Assistant Commissioner should have decided the question of the condonation of delay ? " The High Court answered the question in the affirmative.
The Commissioner of Income tax has come in appeal against this judgment.
Appeals are provided against assessments under section 30 of the Act.
There is a, proviso to section 30(1) in regard to the payment of taxes in the following 'Words: " Provided that no appeal shall lie against an order under sub section (1) of section 46 unless the tax has been paid.
" The controversy between the parties revolves round the words " no appeal shall lie." The contention which was raised before us was that these words mean that there is no right of appeal till the tax is paid and therefore if the tax has not been paid the memorandum of appeal cannot be filed and if filed it is merely a waste paper.
In our opinion the meaning of the words " no appeal shall lie " in the proviso is not that no memorandum of appeal can be presented.
All that it means is that the appeal will not be held to be properly filed until the tax has been paid.
If, for instance, the memorandum of appeal is filed 'on the 20th day, i.e.,.
10 days before the period of limitation expires and the tax is paid within the rest of the 10 days, the appeal will be a proper appeal; it will be within time and no question of limitation will arise but if the tax is paid after the period of limitation has expired it will be taken to have been filed on the day when the tax is paid even though the memorandum of appeal was presented earlier and within the period of limitation.
, The question, will then have to be decided whether there was sufficient cause for condonation of delay and that is exactly what the Tribunal had ordered 896 and that in our opinion is the effect of the proviso to section 30(1) read with sub section
(2) of section 30 of the Act.
It is unnecessary therefore to refer to the two cases referred to by the High Court, i.e., Raja of Venkatagiri vs Commissioner of Income tax (1) and Kamdar Brothers vs Commissioner of Income tax (2).
The appeal is without force and is therefore dismissed with costs.
Appeal dismissed.

summary/full:
Against an order imposing penalty under section 46(1) of the Indian Income tax Act on account of failure to pay an instalment of Income tax, an appeal was preferred.
Though the memorandum of appeal was presented with the period of limitation, the tax was paid after the period of limitation prescribed for presenting the appeal had expired.
Held, that the expression " No appeal shall lie " in the proviso to section 30(2) of the Indian Income tax Act means that the appeal cannot be held to be properly filed until the tax is paid, and not that no memorandum of appeal may be presented.
The effect of proviso to section 30, sub section
(1) read with sub section
(2) of the Act is that the appeal will be deemed to be filed on the date when the tax due is paid and the question will then have to be decided whether there is sufficient cause for condonation of delay.


judgement:
Appeal No. 434 of 1960.
Appeal by special leave from the judgment and order dated October 4, 1956, of the Hyderabad High Court in I.T.R. No. 116/5 of 1954 55.
K. N. Rajagopal Sastri and D. Gupta, for the appellant.
A, V. Viswanatha Sastri, S.N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents.
February 22.
The Judgment of the Court was delivered by SHAH, J.
M/s.
Bhikaji Dadabhai & Co. herein.
after called the assessees owned an oil mill at Khammamath in the area of the former State of Hyderabad.
For the year of assessment Fasli 1357 (October 1, 1946, to September 30, 1947), the assessees returned an income of Rs. 50,384/ .
The Income tax Officer found that the books of account maintained by the assessees were unreliable and by his order dated February 10, 1950, he assessed their total income at Rs. 1,63,131/ .
The Income tax Officer had, before finalising the assessment, issued on December 22, 1949, a notice to the assessees under section 40 of the Hyderabad Income tax Act requiring them to show cause why penalty should not be imposed upon them and by order dated October 31, 1951, directed the assessees to pay by way of penalty Rs. 42,000/ in addition to the tax.
This order was confirmed in appeal by the Appellate Assistant Commissioner.
In appeal, the Income tax Appellate Tribunal observed that by virtue of the provisions of section 13 (1) of the Indian Finance Act, 1950, the Hyderabad Income tax Act had ceased to have effect and as the power to impose penalty under section 40 of the Hyderabad Income tax Act was not saved, the order imposing penalty was without jurisdiction, The Tribunal observed; 925 " The Income tax Officer may have been in error in imposing the penalty, but there was no appeal against the order of the Income tax Officer to the Appellate Assistant Commissioner.
Section 42(1) of the Hyderabad Income tax Act gives a right to an assessee to appeal if he objects to an order under section 40 made by an Income tax Officer.
Section 40 ceased to have effect.
There can therefore be neither an order under section 40 nor an appeal against the order if an order.has been wrongly made.
The remedy of the assessee lies elsewhere, and not by way of an appeal to the Appellate Assistant Commissioner," and on that view dismissed the appeal.
At the instance of the assessees, the following questions were referred by the Tribunal to the High Court of Judicature at Hyderabad 1.
Whether on 31 10 1951, the Income tax Officer, Warrangal Circle, had the power to impose a penalty under section 40(1) of the Hyderabad Income tax Act in respect of the assessment for the year 1357 F. ? 2.
Whether the assessee had a right to appeal against the order of the Income tax Officer imposing the penalty ? 3.
If the Appellate Assistant Commissioner did not have jurisdiction to hear the appeal, whether the order of the Appellate Assistant Commissioner is a nullity and therefore the order of the Income tax Officer erroneous, though it may stand until it is set aside by a competent authority ? The High Court answered the first and the third questions in the negative and the second question in the affirmative.
The High Court observed that the Appellate Assistant Commissioner had power to entertain the appeal in which the question of the power of the Income tax Officer to impose a penalty was challenged, and the decision of the Appellate Assistant Commissioner was not without jurisdiction.
The High Court also proceeded in a petition separately filed by the assessees to direct the Income tax Appellate Tribunal to set aside the order of the Income tax Officer imposing a penalty as a logical 926 consequence of the view the Tribunal had taken regarding the absence of power in the Income tax Officer to levy a penalty.
Against the order passed by the High Court, this appeal with special leave is preferred.
We are in agreement with the High Court that the appeal to the Appellate Assistant Commissioner was competent.
Even if the Income tax Officer committed an error in passing the order imposing penalty because the conditions necessary for invoking that jurisdiction were absent, an appeal against his order on the ground that he was not competent to pass the order did lie to the Appellate Assistant Commissioner.
The Appellate Assistant Commissioner is under the Act constituted an appellate authority against certain orders of the Income tax Officer, and exercise of that jurisdiction is not made conditional upon the competence of the Income tax Officer to pass the orders made appealable.
The Appellate Assistant Commissioner had as a court of appeal jurisdiction to determine the soundness of the conclusions of the Income tax Officer both on questions of fact and law and even as to his jurisdiction to pass the order appealed from.
We are, however, unable to agree with the High Court that because of the repeal of the Hyderabad Income tax Act by the Finance Act, 1950, the power to impose a penalty in respect of the years preceding the date of repeal was lost.
The State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income tax Officer.
Thereafter the Indian Legislature enacted the Finance Act, 1950, which by sub section (1) of section 13 in so far as it is material provided: " If immediately before the 1st day of April, 1950, there is in force in any part B State. any law relating to income tax or super tax. that law shall cease to have effect except for the purposes of the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act, 1922. " 927 Manifestly, by section 13, the Hyderabad Income tax Act ceased to have effect as from April 1, 1950.
But the operation of that Act in respect of levy, assessment and collection of income tax and super tax in respect of periods prior thereto for which liability to Income tax could not be imposed under the Indian Income tax Act, 1922, was saved.
The Judicial Committee of the Privy Council in Commissioner of Income tax, Bombay Presidency and Aden vs Messrs. Khemchand Ramdas observed: " One of the peculiarities of most Income tax Acts is that the word 'assessment ' is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer." The Hyderabad Income tax Act also used the expression" assessment " in different senses.
In certain sections, for instance sections 31 and 39 the expression is used as in the sense of mere computation of income; in other sections it is used in the sense of determination of liability and in certain other sections in the sense of machinery for imposing liability and procedure in that behalf.
"By the Finance Act, 1950, the Hyderabad Income tax Act was expressly kept alive in respect of periods which include the assessment year in question for purposes of levy, assessment and collection of income tax.
The High Court expressed the view that the word "assessment" in section 13 (1) included the whole procedure for imposing liability upon the taxpayer but not to the procedure for imposing a penalty.
They thought that the Hyderabad Income tax Act dealt with liability to pay income tax and penalty in distinct provisions, both relating to imposition and recovery and that if the Legislature had intended to keep alive the Hyderabad Income tax Act for all purposes including the levy of penalty with respect to any particular year or years of assessment, it could have said so in terms clear and unambiguous instead of limiting the operation only to " levy, assessment and collection." In the view of the High Court, imposition of penalty (1) (1938) L.R. 65 I.A. 236; 928 was not a necessary concomitant or incident of the process of assessment, levy and collection of tax.
The High Court proceeded upon the view that by saving the Hyderabad Income tax Act for the purposes.
of levy, assessment and collection of income tax, the entire procedure for imposing liability to pay tax and.
for collection of tax was saved, but penalty not being tax, provisions relating to imposition of and collection of penalty did not survive the repeal of the Hyderabad Income tax Act.
This Court considered in C. A. Abraham vs The Income tax Officer, Kottayam(1) the question whether the expression " assessment " as used in section 44 of the Indian Income tax Act included the procedure for imposition of penalty in respect of a dissolved firm and it was observed: "The expression 'assessment ' used in these sections (provisions of Ch.
IV of the Indian Income tax Act) is not used merely in the sense of computation of income and there is in our judgment no ground for holding that when by section 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not to the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof.
By section 28, the liability to pay additional tax which is designated penalty is imposed in view of the dishonest or contumacious conduct of the assessee." This court regarded penalty as an additional tax imposed upon a person in view of his dishonest or contumacious conduct.
It is true that under the Hyderabad Income tax Act, distinct provisions are made for recovery of tax due and penalty, but that in our judgment does not alter the true character of penalty imposed under the two Acts.
Nor are we able to agree that because in respect of the , the Indian Tariff Act, 1934, the , the Central Excise and Salt Act, 1944, and the Indian Post Offices Act, 1898, which were extended (1) ; 929 to the whole of India by section 11 of the Finance Act, 1950, and the provisions corresponding thereto were repealed by the proviso, and it was expressly provided that the previous operation of the corresponding law or any penalty, forfeiture or punishment ordered in respect of an offence committed against any such law or any investigation, legal proceeding or remedy in respect of such penalty, forfeiture or punishment or any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed, that under sub section
(1) of section 13 it was intended to prohibit the authorities otherwise competent in that behalf fro` commencing or continuing the proceeding for levying penalty even if the circumstances justify such a course.
The scheme of the statutes specified in section 11 and which are repealed by sub section
(2) of section 13 are somewhat different from the scheme of the Indian Income tax Act.
Because by sub section
(1) of section 13 of the Finance Act, 1950, the Hyderabad Income tax Act was to cease to operate as on April 1, 1950, except for the purposes of levy, assessment and collection of income tax and super tax, whereas in respect of other Acts specified in section 11 substantially provisions similar to those contained in section 6 of the General Clauses Act were enacted, an intention that proceedings for penalty may be commenced and continued under the Acts specified in section 11, whereas no such proceedings may be commenced or continued under the Hyderabad Income tax Act is not indicated.
We are of the view that the High Court erred in holding that the proceedings for imposing the penalty could not be continued after the enactment of section 13 (1) of the Finance Act, 1950.
The appeal will therefore be allowed and the answer to the first question will be recorded in the affirmative,.
On the view taken by us, it is unnecessary to pass,any orders on the petition under article 226 of the Constitution which was presented to the High Court.
The appellant will be entitled to his costs of the appeal in this Court and in the High Court.
Appeal allowed.

summary/full:
The Income tax Officer found that the respondents ' books of accounts were unreliable and after assessing income for Fasli year 1357, corresponding to the year 1946 47, issued notice to the respondents on December 22, 1949, under section 40 of the Hyderabad Income tax Act to show cause why penalty should not be levied in addition to the tax and by an order dated October 31, 1951, directed payment of the said penalty.
The State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income tax Officer and by section 13 of the Finance Act, 1950, the Hyderabad Income tax Act ceased to have effect from April 1, 1950, but the operation of that Act in respect of levy, assessment and collection of income tax and super tax in respect of periods prior thereto for which liability to income tax could not be imposed under the Indian Income tax Act, was saved.
The question was whether (a) the Income tax Officer had power on October 31, 1951, to impose a penalty under section 40(1) of the Hyderabad Income tax Act and (b) whether the assessee had a right to appeal against the order of the Income tax Officer imposing penalty and whether the Appellate Assistant Commissioner had jurisdiction to hear appeals or whether his order was a nullity.
Held, that the power of the Income tax Officer to impose a penalty under section 40(1) of the Hyderabad Income tax Act in respect of the year preceding the date of the repeal of the Hyderabad Income tax Act was not lost because by section 13 of the Finance Act, 1950,,for the operation by the Hyderabad Income tax Act in respect of levy, assessment and collection of income tax and super tax in respect of periods prior to April, 1951, for which liability to income tax could not be imposed under the Indian Income tax Act, was saved and so the proceedings for imposing the penalty could be continued after the enactment of section 13(1) of the Indian Finance Act, 1950.
Held, that the appeal against the order of the Income tax Officer on the ground that he was not competent to pass the order did lie to the Appellate Assistant Commissioner, whose jurisdiction was not made conditional upon the competence of the 924 Income tax Officer to pass the.
orders made appealable; as a court of appeal he had jurisdiction to determine the soundness of the conclusions of the Income tax Officer both on the question of fact and law and even as to his jurisdiction to pass the order appealed from, and his order was not a nullity.