judgement:
Civil Appeals Nos.
149 to 154 of 1959.
Appeals by special leave from the judgment and order dated February 25, 1958 of the former Bombay High Court at Rajkot in Civil Revision Applications Nos. 46, 49,55, 57, 58 and 59 of 1958.
S.P. Sinha, Shahzadi Mohiuddin and M.L Khowaja, for the appellants.
N.S. Bindra and R.N. Sachthey, for the respondents.
October 21, 1963.
The Judgment of the Court was delivered by SUBBA RAO J.
These six appeals filed by special leave raise a common question, namely whether the suits flied against the Western Railway for the refund of amounts collected from the appellant firm as wharfage or demurrage would lie in a Civil Court.
Civil Appeals Nos.
152 and 153 of 1959 arise out of the suits filed for the recovery of the amounts collected from the appellant firm by way of demurrage and the other appeals are filed for the recovery of amounts collected from the said firm by way of wharfage charges.
It would be enough if we gave the particulars of the claim in one of the suits, for it was stated at the Bar that the claims for refund were similar in all the other suits.
Excepting the plaint in Civil Suit No. 109 of 1957, the other plaints are not placed before us.
We are, therefore, proceeding on the assumption that the relevant allegations in all the plaints are similar, particularly as the assertion of learned counsel for the appellants to the said effect was not questioned by learned counsel for the respondent.
Civil Suit No. 109 of 1957 was filed by the appellants in Civil Appeal No. 149 of 1959 for recovery of a sum of Rs. 295 from the Union of India representing the Western Railway.
The appellants are 150 a firm doing business in Surendranagar.
The said firm received a consignment of 125 bags of rice booked from Belanganj to Surendranagar railway station.
At the time of effecting delivery of the said consignment, the Station Master at Surendranagar recovered a sum of Rs. 275 7 O from the appellant firm as wharfage charges.
It is alleged in the plaint that the railway notifications and rules under which the railway had charged the wharfage at two annas to four annas per maund per day were illegal and ultra vires and that in any view the railway had no power under the rules to collect charges from the appellantfirm under the said rules for the "free time" under the head of wharfage charges.
On those allegations the suit was filed for the refund of the amount collected by the said railway.
The defendant denied either that the rules were ultra vires or that it collected the amount contrary to the rules.
It pleaded that the civil court had no jurisdiction to entertain the suit.
Similar suits were filed in respect of other amounts and similar contentions were raised.
The learned Civil Judge dismissed all the suits on the ground that they were barred under section 26 of the Indian Railways Act, 1890 (Act IX of 1890), hereinafter called the Act.
The said firm in all the suits preferred revisions against the judgment of the Civil Judge to the High Court of Bombay at Rajkot.
The High Court agreed with the view of the Civil Judge and dismissed the revisions.
Hence the appeals.
The only question raised before us is whether section 26 of the Act is a bar against the maintainability of the said suits in a civil court for refund of the said amounts collected from the appellant firm by way of wharfage and demurrage charges.
To appreciate the contentions of the parties it is necessary to notice the relevant sections of the Act.
At the outset it may be mentioned that in the present appeals the amounts were collected between the years 1953 and 1955 and, therefore, we will be ignoring the later amendments made in the Act for the purpose of the present enquiry.
151 Section 3(14) "terminals" includes charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services rendered thereat.
" Section 26.
"Except as provided in this Act, no suit shall be instituted or proceeding taken for anything done or any omission made by a railway administration in violation or contravention of any provision of this Chapter (Ch. V).
" Section 32. "The Central Government may, by general or special order, fix the rates of terminal and other charges for the whole or any part of a railway, and prescribe the conditions in which such rates will apply.
Section 34.
(1) There shall be a Tribunal called the Railway Rates Tribunal, for the purpose of discharging the functions hereinafter specified in this Chapter.
Section 41.
(i) Any complaint that a railway administration (c) is levying charges (other than standardised terminal charges) which are unreasonable, may be made to the Tribunal, and the Tribunal shall bear and decide any such complaint in accordance with the provisions of this Chapter.
Section 45.
Nothing in this Chapter shall confer jurisdiction on the Tribunal in respect of scales of charges levied by a railway administration for the carriage of passengers and their luggage, parcels, military traffic and traffic in railway materials and stores, and demurrage charges, except on a reference made to the Tribunal by the Central Government.
Section 46A.
The decision of the Tribunal shall be by a majority of the members sitting and shall be final.
152 Provided that where a single member of the Tribunal has heard and decided any matter, he may, ,in his discretion, give leave to any party to appeal to the Full Bench; and if an appeal is filed in pursuance of such leave, the decision of the Full Bench or of a majority of the members thereof, as the case may be, shall be final.
Section 46B.
The Tribunal may transmit any order made by it to a Civil Court having local jurisdiction and such Civil Court shall execute the order as if it were a decree.
Section 46C.
In this Chapter, unless there is anything repugnant in the subject or context, (d) "demurrage" means the charge levied after the expiry of the free time allowed for loading or unloading a wagon.
The scheme of the said provisions is clear.
The Central Government fixes the rates of terminal and other charges for the whole or a part of a railway.
If a railway administration levies charges other than the standardised terminal charges which are unreasonable, an aggrieved party may file a complaint against the administration before the Railway Rates Tribunal.
The decision of the Tribunal is final.
In regard to 'demurrage charges mentioned in section 45 of the Act, the Tribunal has no jurisdiction to entertain a claim in respect thereof, except by a reference made to the Tribunal by the Central Government.
Section 26 bars the jurisdiction of ordinary civil courts to entertain a suit or a proceeding for anything done or any omission made by the railway administration in violation or contravention of any of the provisions of Chapter V.
In regard to such violation, an aggrieved party can only proceed in the manner provided by the Act.
The short question, therefore, is whether the said claims for refund are covered by the bar imposed by section 26 of the act.
As section 26 bars the jurisdiction of civil courts, its provisions must be strictly construed.
The bar is in respect of anything done or an omission 153 made by the railway administration in violation or contravention of any provisions of Chapter V of the Act.
If the opening words "Except as provided in this Act" in section 26 of the Act are ignored, the bar appears to be comprehensive, for it may take in its sweep any dereliction of duty by the railway administration in respect of matters covered by the provisions of the said chapter.
But such an intention to give a blanket licence to the railway administration to contravene the provisions of Chapter V of the Act shall not be attributed to the Legislature unless the section is very clear to that effect.
The opening words "Except as provided in this Act" limit the operation of the bar.
It can reasonably be interpreted to mean that the bar of a suit is limited to matters in respect whereof the Act has provided a remedy.
So construed, before we apply the provisions of section 26 of the Act, two conditions shall be complied with, namely, (i) the railway administration shall have done an act or omitted to do an act in contravention of the provisions of Ch.
V and (ii) the Act has provided a remedy in respect of that act or omission.
It was argued that the charges levied by the railway administration under the heads of "wharfage" and "demurrage" are "terminals" in regard whereof rules were framed by the Government under section 32 of the Act, that the complaint of the appellants was that the rates were collected in excess of those prescribed under the rules and that, therefore, section 26 bars a suit for recovery of the same.
The first question, therefore, is whether wharfage and demurrage charges are "terminals".
"Terminals" has been defined by section 3(14) of the Act to include charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services rendered thereat.
Under s.32 of the Act the Central Government may, by general or special order, fix the rates of terminal and other charges for the whole or any part of a railway, and prescribe the conditions in which such rates will apply.
In order to find out whether wharfage and 154 demurrage charges come under the definition of "terminals", it is necessary to ascertain the meaning of the words "wharfage" and "demurrage" as understood by the Act and the rules made thereunder.
There is no definition of "wharfage".
in the Act.
But section 46C(d) defines demurrage to mean the charge levied after the expiry of the free time allowed for loading or unloading a wagon.
But the rules, presumably made under the Act, give a clear idea of the meaning of these words.
The relevant rule is r. 85 and it reads: "The actual wharfage and demurrage rules locally in force on different railways are published in each Railway 's Tariffs and may be ascertained on application at stations.
The following wharfage and demurrage rules were in force on the B.B. & C.I. Railway, which is now named as the Western Railway.
Clauses (A) and (B) thereof give the rates of wharfage and demurrage and clause (C) defines "demurrage" and "wharfage".
Clause (C) reads: (i) When wagons required to be unloaded by consignees are not unloaded within the free time of six day tight hours, after being placed in position for unloading, demurrage as per clause (B) (ii) above will be charged for such time above six daylight hours, as the goods remain in the wagon, and wharfage at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by the end of the day following that on which they are unloaded." (ii) When wagons requiring to be unloaded by consignees are unloaded within the free time of six daylight hours, after being placed in position for unloading, wharfage at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by 155 the end of the day following that on which the free time of six daylight hours, expires.
Demurrage is therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose, Indeed section 46C(d) of the Act, which was inserted by Act 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule.
Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under the rules.
The question is whether such charges are "terminals" as defined in the Act.
The expression "terminal charges" was defined for the first time in the Indian Railways Act, 1890.
It was taken from the definition in section 55 of the English Railway and Canal Traffic Act, 1888.
Terminal charges are of two categories: (1) charges for services, and (2) charges for accommodation and appliances which facilitate business.
The "service terminals" comprise of remuneration for the handling of goods at the terminal station i.e., where the railway employees are engaged in weighing, loading, unloading, etc.
As distinguished from this "service terminals" there are "station terminals" which are charges for providing accommodation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliances etc.
" Both demurrage and wharfage would fall within the head of "station terminals", because they are charges levied for the use either of the wagon or of the platform or goods shed after the transit or conveyance is complete and is not incidental to the conveyance as such.
Charges levied in respect of stations are included in the definition of "terminals" under the Act.
As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the 156 station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station.
If so, it follows that the said charges are "terminals" within the meaning of the definition of the said expression in the Act.
Let us now see whether any remedy is provided by the Act for an aggrieved party to ask for a refund of the charges collected on the ground mentioned in the plaint.
The Tribunal constituted under section 34 of the Act has jurisdiction to decide whether the charges levied by the railway administration other than the standardised terminal charges were unreasonable.
The Act does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharf age or demurrage on the ground that the rules empowering the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules.
If the impugned charges are standardised terminal charges, the dispute in regard thereto fails outside section 41 of the Act.
If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness.
It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule.
If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants.
Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants.
We do not propose to express our view in this case, as it has not been argued before us, whether the demurrage charges in question fell within the meaning of the expression "demurrage charges" in 157 section 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder.
For the foregoing reasons we hold that both the High Court and the trial Court went wrong in dismissing the suits on the ground that section 26 of the Act was a bar against their maintainability.
We, therefore, set aside the judgment of the High Court as well as that of the trial Court and remand the suits to the trial Court for disposal in accordance with law.
We should not be understood to have expressed any opinion on the other questions raised in the suits.
The respondent will pay the costs of the appellants here.
The costs of the courts below will abide the result.
Suits remanded.

summary/full:
Suits were filed against the Union of India representing the Western Railway for the refund of amounts collected by the Western Railway as wharfage and demurrage charges from the appellants.
It was alleged in the plaint that Railway notifications and rules under which the Railway had charged the wharfage at two annas to four annas per maund per day were illegal and ultra rites and that in any view the railway had no power under the rules to collect charges from appellant firm for the "free time" under the head of wharfage charges.
The respondent pleaded that Civil Court had no jurisdiction to entertain the suits and that rules were not ultra rites and money was not collected against the rules.
Suits were dismissed by the trial court on the ground that they were barred under section 26 of the Indian Railways Act.
Revisions were also dismissed by the High Court.
The appellants came to this Court by Special Leave.
Accepting the appeals, Held, that section 26 of the Indian Railways Act is not a bar to the maintainability of a suit for the refund of what fage or demurrage charged in excess.
The bar under section 26 is not comprehensive.
It is limited by the opening words "Except as provided in the Act" in the section.
Two conditions must be complied with before applying section 26.
The railway administration should have done an act or omitted to do an act in contravention of the provisions of Chapter V of the Indian Railways Act and the Act should provide a remedy in respect of that act or omission.
In the present case, the Act does not provide for any remedy for an aggrieved party to approach the Tribunal appointed under section 34 of the Act for the refund of the amount collected in excess by the Railway Administration by way of wharfage or demurrage.
The Tribunal has no jurisdiction to decide whether the rules empowering the administration to collect wharfage or demurrage charges are ultra vires or the amounts collected are in excess of what is leviable under the rules.
Wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station and also in respect of the goods kept on a platform of the station, beyond the free time allowed for clearance under the rules.
The said charges 149 can certainly be described as charges in respect of the station and are terminals within the meaning of the definition of the term in the Act.


judgement:
iminal Appeal No. 80 of 1963.
Appeal by special leave from the judgment and order dated March 26, 1963, of the Punjab High Court in Criminal Misc.
No. 186 of 1963.
R. K. Garg, section C. Agarwal, M. K. Ramamurthi and D. P. Singh, for the appeallant.
L. K. Kaushal, Senior Deputy Advocate General for the State of Punjab and B. R. G. K. Achar, for the respondent.
October 11, 1963.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
The detenu Makhan Singh Tarsikka whose Habeas Corpus petition has been dismissed by the Punjab High Court, has brought this appeal before us by special leave.
It appears that on the 22nd October, 1962, F.I.R., was filed at the Police Station, Jandiala, alleging that offences under sections 307, 324, 364 and 367 I.P.C. had been committed by certain persons including the appellant.
In pursuance of the investigation which commenced on receipt of the said F.I.R., the appellant was arrested on the 25th October, 1962.
On the 26th October, 1962, Emergency was declared by the President.
On the 1st November, 1962, the appellant was transferred to judicial custody of the Sub Divisional Magistrate, Amritsar.
Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November, 1962.
On the 20th November, 1962, an order of detention was passed against the appellant under Rule 30(1)(b) of the Defence of India Rules, 1962 (hereinafter called the 'Rules ').
This 935 order was served on the appelant on the 21st November, 1962 and it appears he was removed to the jail at Hissar.
On the 30th January, 1963, he was brought back to Amritsar, and on the 9th February 1963 he filed the present writ petition.
In his petition which was filed by the appellant, the main allegation which he made in challenging the validity of his detention was that the grounds ' set up in the order of detention were "very vague, concocted and totally false".
The detention order had stated that the appellant was detained because he was found to be "indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by urging people not to contribute to the National Defence Fund.
" The order added that having regard to his activities, it was thought necessary to detain him in order to prevent him from carrying on the said prejudicial activities.
On the 4th March, 1963, the appellant made an additional affidavit in which be urged that the fact that the depone it was in confinement before the declaration of emergency on the 26th October, 1962 and the Chinese invasion, clearly showed that the allegations against the deponent were false and concocted.
By this supplementary affidavit, the appellant furnished an additional ground in support of his original plea that the grounds on which his detention had been ordered were false and concocted.
On the 6th March, 1963, the appellant filed a third affidavit in which he stated that his political activities as a member of the Legislative Assembly were disliked "by the High ups".
He referred to several Starred Questions of which lie had given notice in the Punjab Legislative Assembly to show that the ruling high ups were angry with him.
These Questions, the appellant alleged, "revealed the naked corruption of the ruling high ups".
The appellant further alleged that the Jandiala Police were enraged by the fact that at his instance the Punjab High Court bad appointed the Sessions Judge at Amritsar to hold an inquiry in village Ramana Chak affairs.
According to him, the S.S.P., Amritsar who was a near relative of the ruling Chief was also hostile to him.
It is on these additional grounds also that the appellant purported to 936 challenge the validity of his detention before the Punjab High Court.
These three affidavits were duly challenged by counter affidavits made on behalf of the respondent, State of Punjab.
It was in one of these affidavits that the res pondent brought out the fact that the appellant had nine interviews in jail between the 3rd November to 19th November, 1962 and.
the information received by the respondent was that during these interviews, the appellant instigated the persons who saw him, to commit prejudicial activities.
The affidavits filed by the respondent also disputed the other allegations made by the appellant in the three affidavits to which we have already referred.
It appears that before the High Court it was urged by the appellant that the order of his detention had been passed malafide and his contention was sought to be supported on the ground that he had been arrested on the 25th October, 1962, and so, it would not be rationally possible to allege against him that he had indulged in the prejudicial activities mentioned in the said order.
It was also argued before the High Court on his behalf that since a criminal case under section 307 I.P.C. was pending against him at the relevant time, it was not open to the detaining authority to detain him under Rule 30(1)(b) of the Rules.
The learned Judge who heard the habeas corpus petition filed by the appellant, rejected both these Contentions.
In the result, he held that the appellant had failed to make out a case that his detention was illegal, and so, the writ petition was dismissed.
On behalf of the appellant, Mr. Garg has urged that the service of the order of detention which was effected on the 21st November, 1962 is illegal and in support of his argument he has relied on a recent decision of this Court in Rameshwar Shaw vs The District Magistrate Burdwan & Another(1).
Mr. Garg points out that the material words used in section 3(1) of the Preventive Detention Act, 1960 (No. 4 of 1960) (hereinafter called 'the Act ') which were construed by this Court in the case of Rameshwar Shaw(1) are substantially the same as in Rule 30(1) of the rules with which the present appeal is concerned, and he contends that the said decision fully justifies his argument (1) 937 that the service of the impugned order of detention on the appellant when he was already in 'ail custody is outside the: purview of Rule 30(1).
In our opinion, this argument is well founded and must be accepted.
In the case of Rameshwar Shaw(1) this Court construed section 3(1) of the Act and held that the said provision necessarily postulates that a person sought to be detained would be free to act in a prejudicial manner if he is not detained.
In other words, the freedom of action to the person sought to be detained at the relevant time must be shown before an order of detention can be validly served on him under the said section.
If a person is already in jail custody, it was observed in the said judgment, how can it rationally be postulated that if be is not detained lie would act in a prejudicial manner?, and so, the effect of the said decision is that an order of detention cannot be validly served on person who is already in jail custody and in respect of whom it is rationally not possible to predicate that if the said order is not served on him, he would be able to indulge in any prejudicial activity.
In the case of Rameshwar Shaw(1) this Court also considered the question as to whether an order of detention can be made against a person who is in 'Jail custody, and It was held that as an abstract proposition of law, there may not be any doubt that section 3(1)(a) of the Act does not preclude the authority from passing an order of detention against a person whilst he is in detention or in 'ail.
But this Court also added that the relevant facts ,in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.
Dealing with this aspect of the matter, this Court emphasised the relevance of the considerations of proximity of time and concluded that whether ,in order of detention can be passed against a person who is in detention or in 'ail, will always have to be determined in the circumstances of each case.
It would thus be seen that in the case of Rameshwar Shaw (1), his application was allowed and he was ordered to be set at liberty on the ground that the service of the order detaining him was (1) 60 2 S C India/64 938 effected when he was in jail.
Mr. Garg naturally relies on this authority in support of his first contention that the service of the detention order against the appellant whilst he was in jail is similarly invalid.
The learned Dy.
Advocate General who appears for the respondent attempted to argue that the decision in Rameshwar Shaw 's case (1) would not be applicable to the present appeal, because the scheme of Rule 30(1) is radically different from the scheme of section 3(1) of the Act.
He concedes that the operative portion of Rule 30(1) is subs tantially similar to section 3(1).
Rule 30(1) provides.
"The Central Government or the State Government, if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India 's relations with foreign powers, the maintenance of peaceful conditions in any part of India, the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community, it is necessary so to do, may make an order.
" Then follow eight clauses which authorise the specified categories of orders which may be passed under Rule 30(1).
Clause (b) relates to detention and it is with this clause that we are concerned in the present appeal.
The argument is that the eight clauses indicate that it is not only the detention which can be ordered by the appropriate authority, but there are several other kinds of orders which can be passed ; under clause (a), for instance, the person can be directed to remove himself from India in such manner, by such time and by such route as may be specified in the order, and be prohibited from returning to India.
Clause (c) authorises the appropriate authority to impose limitations against a person prohibiting him from going into any such area or place as may be specified in the order.
Clause (d) contemplates a kind of internment of the person within the area specified in the order.
Under clause (e) the movements of the person can be regulated by asking him to report himself or to notify his movements or both in the manner indicated in that clause.
Clause(f) (1) 939 permits imposition of restrictions in respect of the employ ment or business carried on by the person, while under clause (g), restrictions may be imposed on the possession or use by the person of any articles mentioned in the order.
Clause (h) is general in terms and it provides that the appropriate authority may make an order otherwise regulating the conduct of the person in any such particular as may be specified in the order.
It is thus clear that the nature and the scope of the orders which can be validly passed under Rule 30(1) is very much wider than the order of detention which alone ,can be made under section 3(1) of the Act.
But the question which we have to consider is : does this fact make any difference to the interpretation of the operative provisions of Rule 30(1) in relation to detention? In our opinion, the answer to this question must be in the negative.
Rule 30(1)(b), like section 3(1)(a), clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention, the person concerned would be able to carry out a prejudicial activity of the character specified in Rule 30(1).
In other words, one of the conditions precedent to the service of the order permitted under Rule 300(1) (b) is that if the said order is not served on the person, he would be free and able to carry out his prejudicial activity in question.
The fact that other kinds of orders can be passed against a person under Rule 36(1) does not alter the essential condition of a valid service of the order contemplated by Rule 30(1)(b) that if the said order is not served, the prejudicial activity may follow.
Therefore, we are satisfied that on a plain construction of Rule 30(1)(b) it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity.
Such a freedom cannot be predicated of the appellant in the present case because he was in 'ail at the relevant time.
Therefore, we do not think that the distinction which the Dy.
Advocate General seeks to make between the provisions of Rule 30(1)(b) and section 3(1)(a) makes any difference to the construction of the Rule.
The service of a detention order on a person who is already in jail ,custody virtually seeks to effectuate what may be called "a double detention ' and such double detention is not 940 intended either by section 3(1)(a) or by Rule 30(1)(b); it is plainly unnecessary and outside the purview of both the provisions.
It was also argued by the learned Dy.
Advocate General that in the case of an under trial prisoner who is entitled to interview his friends or relatives under rules framed in that behalf.
it would be possible for him to send out messages and thereby carry on his prejudicial activities in an indirect way, and that could be stopped only if he is detained under Rule 30(1)(b).
We are not impressed by this argument.
It appears that Rule 13 of the Punjab Detenus Rules, 1950, allows a detenu to interview a near relative in accordance with these rules and Rule 19 requires that all interviews shall take place unless otherwise directed by the Dy.
Inspector General, Criminal Investigation Department, in the presence of an officer deputed for the purpose by the Superintendent of Police of the district, and it provides that such officer may stop the interview if the conversation turns on any undesirable subject.
The contention is that whereas an ordinary under trial prisoner is not required to interview his friends and relatives in the presence of the Police Officer, that is a condition imposed by Rule 19, and so, in order to prevent the appellant from carrying out his prejudicial activities by means of interviews even whilst lie is in jall custody it was necessary to make the order of detention and serve it on him though he was in 'Jail.
That, it is suggested, is a distinctive feature of the scheme contemplated by Rule 30(1) of the Rules.
The obvious answer to this argument, however, is that if the restriction contemplated by Rule 19 of the Punjab Detenus Rules was intended to be imposed against the appellant, under Rule 30(1) it could easily have been done by regulating his conduct whilst he was an under trial prisoner in jail.
We have already seen that Rule 30(1)(h) authorises the appropriate authority to regulate the conduct of a person in any such particular as may be specified in the order, and there can be no difficulty in holding that if the respondent took the view that from jail, the appellant was carrying out prejudicial activities, an appropriate order could have been passed against him under R. 30(1)(h).
That being so, we do not think that the argument that the scheme of R. 30(1) is radically different from the scheme 941 of section 3(1)(a) of the Act and affects the construction of the operative portion of Rule 30(1)(b), can be sustained.
If the appropriate authority wants to detain a person under Rule 30(1)(b), it must be shown that when the order of detention is served on him, he was free to carry out his prejudicial activities and his prejudicial activities could be prevented only by his detention.
Therefore, we must hold that the service of the order of detention on the appellant whilst he was in 'ail custody is invalid.
In this connection, our attention has been drawn to two decisions to which reference may be made.
In Emperor vs Mool Chand & Ors.(1), the Allahabad High Court has held that the detention of persons who have already been arrested cannot be said to be mala fide merely for the reason that the order of detention was passed against them when they had already been arrested.
The mere fact, says the judgment, that persons were first arrested under some provisions of the ordinary law and were later ordered to be detained under the U.P. Maintenance of Public Order (Temporary Act) is not in itself, proof of mala fides and that it is for the party setting up mala fides to prove circumstances from which mala fides could be reasonably inferred.
It would thus be seen that the point argued before the Court and which has been decided by the judgment, is that a detenu cannot succeed in proving that the order of his detention has been passed mala fide solely for the reason that prior to the date of the order, he had been arrested.
In other words, in order to prove mala fides in passing the detention order, adequate evidence must be led and the mere allegation that the order followed the arrest of the detenu under the Cr.
Procedure Code, for an offence will not sustain his plea of mala fides.
We do not see how this judgment can assist the respondent in the present appeal.
In Dayanand Modi vs The State of Bihar(2), the question raised was whether detention and prosecution of the same person can be simultaneously made.
In other words, the point urged was whether a person who is being prosecuted under the ordinary criminal law can (1) I.T.R.1948 All 288.
(2) I.L.R. 30 Patna 630.
942 be detained whilst the prosecution is still pending against him.
This decision has no bearing on the question as to the construction of Rule 30(1)(b) and the effect of the service of an order of detention on a person who is already in 'ail custody.
All that the Patna High Court did in that case was that it rejected the extreme proposition urged for the detenu that when an offence is alleged to have been committed, the State Government has no authority to detain, but must launch a prosecution and wait for the decision of the Court, or that the withdrawal of a pending prosecution will in certain cases amount to an acquittal and, therefore, deprive the State Government of any legal authority to make an order of detention on the same facts.
As we will presently indicate, the problem which the Patna High Court has considered in that case was sought to be raised before us by Mr. Garg, but since we have come to the conclusion that the service of the order of detention on the appellant whilst he was in 'ail custody is invalid, we do not propose to deal with that question.
We may, however, indicate the nature of the point which Mr. Garg sought to raise before us.
Basing himself on the decision of the Full Bench of the Bombay High Court in Maledath Bharathan Malyali vs The Commissioner of Police(1), Mr. Garg contended that it was not open to the respondent to take simultaneously two actions against the appellant one under the ordinary Cr.
Procedure Code and the other under Rule 3O(1)(b).
The Bombay High Court appears to have held that the State cannot pursue both the rights at the same time if on the facts of a particular case it is apparent that these two rights are inconsistent and cannot be exercised at the same time, the two rights in question being the right to investigate and prosecute a person under the ordinary criminal law and the right to detain him under the Preventive Detention Act.
As we have just mentioned, we do not propose to deal with this point in the present appeal.
Mr. Garg also contended that the making of the (1) I.L.R. 943 order of detention itself is invalid, because at the time when the order was made the appropriate authority knew that the appellant was in 'ail, and so, the order passed was not justified and is, therefore, invalid under Rule 30(1).
In support of this argument Mr. Garg has relied upon the observations made by this Court in the case of Rameshwar Shaw(1).
It would be recalled that in that case also, Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid.
In fact, this Court made no finding on that question and based its decision on the narrow ground that the service of the order was invalid.
We propose to adopt the same course in the present appeal.
In dealing with the question about the validity of the making of the order, it would be necessary to ascertain some more relevant and material facts.
Even though the appellant was in jail custody, it is not unlikely that he could have applied for bail and might have obtained an order of bail, and_ bearing that contigency in mind, the appropriate authority would be justified in making an order of detention against the appellant, provided of course, the authority waited for the service of the order after the appellant was released on bail ; so that, on principle, it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been committed by him.
In fact, as we have already pointed out in the case of Rameshwar Shaw(1), as an abstract proposition of law, this Court has held that an order of detention can be validly made against a person in jail custody.
Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts.
In the absence of any such facts in the present case, we do not think we would be justified in dealing with Mr. Garg 's argument that the making of the order was invalid.
In fact, we were told that after the criminal case pending against the appellant was transferred from (1) 944 Amritsar to a court of competent jurisdiction in U.P. the said court has allowed the appellant 's application for ball, subject, of course, to his detention under the impugned order of detention ; and so, the possibility that the appropriate authority might have apprehended that the appellant would move for bail and might succeed in that behalf, cannot be ruled out in dealing with the question about the validity of the making of the order.
Besides, when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may, in a given case, take the view that the criminal proceedings may end very soon and may terminate in his acquittal.
In such a case, it would be open to the appropriate authority to make an order of detention, if the requisite conditions of the Rule or the section are satisfied, and serve it on the person concerned if and after he is acquitted in the said criminal proceedings.
That leaves the question about mala fides to which Mr. Garg referred in the course of his arguments.
We do not think Mr. Garg can be permitted to raise that point in the present appeal, because we find that adequate material has not been produced by the appellant in support of his plea in the present proceedings.
In fact, the allegations of mala fides which were introduced by the appellant for the first time in the affidavit filed by him on the 6th March, 1963 are far from satisfactory.
The case which Mr. Garg wanted to make under the head of mala fides is directed against the Chief Minister of Punjab, and it is plain that even the third affidavit filed by the appellant does not: disclose any allegations which can justify the said plea being raised.
Therefore, we do not think it would be possible to entertain the said plea in the present case.
A plea of mala fides must always be made by proper pleadings at the trial stage, so that the respondent has an opportunity to meet the said pleadings.
Mr. Garg, no doubt attempted to refer us to certain averments made by the appellant in his petition for special leave, but we do not think we can permit Mr. Garg to make out a case of mala fides on the averments made for the first time in the application for 945 special leave.
That is why we propose to express no opinion on the merits of the plea of mala fides which the appellant wanted to raise before us.
The result is, the appeal is allowed and the order of detention passed against the appellant is set aside On the ground that the service of the order is invalid and is outside the scope of Rule 30(1)(b) of the Rules.
We accordingly direct that the appellant should be released forthwith.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
On the 20th November, 1962, an order of detention was passed against the appellant under Rule 30(1)(b) of the Defence of India Rules, 1962.
This order was served on the appellant on the 21st November, 1962, while lie was in jail custody as an under trial prisoner in connection with a criminal case pending against him.
He was arrested on the 25th October, 1962 in connection with the .said criminal case and since then he was in jail custody.
On the 26th October, 1962, Emergency was declared by the President.
Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November, 1962.
It was alleged by the respondent that during these interviews, the appellant instigated the persons who saw him, to commit prejudicial activities.
The appellant moved a writ petition in the High Court against the said detention order.
The High Court dismissed the writ petition on the ground that the appellant had failed to make out a case that his detention was illegal.
Held : (i) The decision in Rameshwar Shaw 's case would be applicable to the present appeal, because the scheme of Rule 30(1) is not radically different from the scheme of section 3(1)(a) of the preventive Detention Act and does not affect the construction of Rule 30(1)(b) of the Rules.
933 Rameshwar Shaw vs District Magistrate, Burdhwan, ; relied on.
(ii) It is true that the nature and scope of the orders which can be validly passed under Rule 30(1) of the Defence of India Rules is very much wider than the order of detention which alone can be made under section 3(1) of the Preventive Detention Act.
But the operative portion of Rule 30(1) is substantially similar to section 3(1) of the Act.
(iii) Rule 30(1)(b), like section 3(1)(a), of the Act clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention, the person concerned would be able to carry out a prejudicial activity of the character specified in Rule 30(1).
On a plain construction of Rule 30(1)(b) it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity.
Such freedom cannot be predicated of the appellant in the present case because he was in jail at the relevant time.
(iv) The service of a detention order on a person who is already in jail custody virtually seeks to effectuate what may be called 'a double detention ' and such double detention is not intended either by section 3(1)(a) or by Rule 3O(1)(b); it is plainly unnecessary and outside the purview of both the provisions.
(v) If the appropriate authority wants to detain a person under Rule 30(1)(b), it must be shown that when the order of detention is served on him, he was free to carry out his prejudicial activities and his prejudicial activities could be prevented only by his detention.
Therefore, the service of the order of detention on the appellant whilst he was in jail custody was invalid.
Emperor vs Mool Chand, A.I.R. 1948 All 288, inapplicable.
Dayanand Modi vs State of Bihar, I.L.R. 30 Pat.
630 and Meledath Bharathan Malyali vs Commissioner of Police , I.L.R. , referred to.
(vi) On principle, it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been committed by him.
This Court has held in Rameshwar Shaw that as an abstract proposition of law an order of detention can be validly made against a person in jail custody.
Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts.
In the present case, the making of the order of detention was not invalid.
In Rameshwar Shaw the petitioner was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid.
934 (vii) The plea of malafide cannot be permitted to be raised for the first time in the petition for special leave for the reason that a plea of malafides must always be made by proper pleadings at the trial stage, so that the respondent has an opportunity to meet the said proceedings.
(viii) The order of detention passed against the appellant is set aside on the ground that the service of the order is invalid and is outside the scope of the Rules.


judgement:
Civil Appeals Nos.
781 783 of 1962.
Appeals by special leave from the judgment and order January 6, 1961, of the Andhra Pradesh High Court in Civil Miscellaneous Petition Nos. 4672 to 4674 of 1960.
A. V. Viswanatha Sastri, M.S.K. Sastri and M.S. Narasimhan, for the appellant (in all the appeals).
Ranganadham Chetty and R.N. Sachthey, for the respondent (in all the appeals).
October 22, 1963.
The Judgment of the Court was delivered by AYYANGAR J.
The points raised in these three appeals which come before us by virtue of special leave under article 136 of the Constitution are somewhat 176 out of the ordinary and raise for consideration whether the common order passed by the High Court of Andhra Pradesh rejecting applications to review an earlier order by that court, is correct on the facts which we shall state presently.
The appellant M/s Thungabhadra Industries Ltd. are ' manufacturers of groundnut oil, part of which they convert for sale into hydrogenated oil while the rest is sold as ordinary oil.
Under the Madras General Sales Tax Act, hereinafter referred to as the Act, which has application to the State of Andhra Pradesh, while in regard to groundnuts the tax is levied at the point of purchase, groundnut oil is taxed at the point of sale.
The result of this feature naturally is that when a person purchases groundnut and converts the same into oil and sells the oil extracted he has to pay tax at both the points.
Rules have been framed in order to alleviate what might be considered a hardship by reason of this double levy.
Rule 5(k) of the Turnover & Assessment Rules provides: "5.
(k) in the case of a registered manufacturer of groundnut oil and cake, the amount which he is entitled to deduct from his gross turnover under rule 18 subject to the conditions specified in that rule".
and Rule 18 referred to reads: "18.
(1) Any dealer who manufactures groundnut oil and cake from groundnut and/or kernel purchased by him may, on application to the assessing authority having jurisdiction over the area in which he carries on his business, be registered as a manufacturer of ground nut oil and cake.
(2) Every such registered manufacturer of groundnut oil will be entitled to a deduction under clause (k) of sub rule (1) of rule 5 equal to the value of the groundnut and/or kernel, purchased by him and converted into 'oil and cake if he has paid the tax to the State on such purchases: 177 Provided that the amount for which the oil is sold is included in his net turnover: Provided further that the amount of the turn over in respect of which deduction is allowed shall not exceed the amount of the turnover attributable to the groundnut and/or kernel used in the manufacture of oil and included in the net turnover.
" The appellant is admittedly a manufacturer who is registered for the purposes of that rule.
In respect of the year 1949 50 the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under the rule in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase.
This claim was negatived by the Sales Tax authorities on the ground that "hydrogenated groundnut oil" was not "groundnut oil" within r. 18(2).
Having failed before the departmental authorities in getting its claim to deduction allowed, the appellant approached the High Court with a Tax Revision Case numbered 120 of 1953 on its file but the High Court, by its judgment dated February 11, 1955, upheld the view of the department.
An application was thereafter made to the High Court to grant a certificate of fitness under article 133(1) on the ground that substantial questions of law as to the interpretation of the General Sales Tax Act.
and the Rules made thereunder, as well as of certain other enactments which were relied upon in support of their claim by the appellants, arose for decision in the case.
The learned Judges by their order dated February 21, 1956 granted the certificate.
In view of the points arising in this appeal we consider it would be convenient to set out the text of this order: "This petition raises a question of general importance namely whether hydrogenated groundnut oil popularly known as Vanaspathi is ground 1 SCI/64 12 178 nut oil so as to enable the assessee to claim exemption under Rules 18(2) and 5(1) (g) of the Turnover and Assessment Rules framed by the Government in exercise of the powers conferred by Section 3 and sub rules 4 and 5 of the Madras General Sales Tax Act, 1939.
The answer to the question arising in this matter turns upon whether the chief characteristics of groundnut oil remain the same in spite of the chemical processes it undergoes, It also involves the interpretation of the notifications issued by the Government of India under the Essential Supplies (Temporary Powers) Act and certain provisions of the Vegetable Oils Products Control Order.
In these circumstances we think it a fit case for appeal to the Supreme Court.
Leave is therefore granted.
" Thereafter the appeal was entertained in this Court and numbered as Civil Appeal 498 of 1958, was finally disposed of on October 18, 1960 and is now reported as M/s Thungabhadra Industries Ltd. vs The Commercial lax Officer, Kumool(1).
Meanwhile in regard to the assessment of the three succeeding years 1950 51, 1951 52 and 1952 53, the same question as to whether "hydrogenated groundnut oil" was "groundnut oil" entitled to the deduction of the purchase turnover under r. 18(2) of the Turnover and Assessment Rules was raised and was decided against the appellant by the Sates Tax Officer.
This order was taken up in appeal to the Deputy Commissioner of Commercial Taxes by the appellant and as apparently the identical question was pending in the High Court in regard to the year 1949 50, the appellate authority awaited the decision of the High Court and when T.R.C. 120 of 1953 was decided against the appellant on February 11, 1955, disposed of the appeal against the appellant by its order dated April 5, 1955.
Thereafter the appellant approached the Sales Tax Appellate Tribunal but this was obviously a formality (1) ; 179 because the Tribunal were bound by the judgment of the High Court and the appeals were dismissed by order dated October 20, 1955.
Against the orders of the Sales Tax Appellate Tribunal the appellant preferred three Tax Revision Cases T.R.C. 75,76 and 77 of 1956 in regard to the three assessment years.
The learned Judges of the High Court dismissed the three Revision Cases on October 7, 1958 following their earlier decision in T.R.C. 120 of 1953 in regard to the assessment for the year 1949 50.
At this date, it would be noticed, the correctness of the decision of the High Court in T.R.C. 120 of 1953 was pending adjudication in this Court by virtue of the Certificate of fitness granted by the High Court under article 133(1).
Desiring to file an appeal to this Court against the judgment of the High Court in these three Tax Revision Cases as well, the appellant filed, on February 16, 1959, three miscellaneous petitions under article 133(1) of the Constitution praying for a certificate of fitness that the case involved substantial questions of law as to the interpretation of the Sales Tax Act and the Rules made thereunder etc.
The learned Judges, however, by their order dated September 4.
1959 dismissed the petition stating: "The judgment sought to be appealed against is one of affirmance.
We do not think that it involves any substantial question of law as to the interpretation of the Constitution; nor do we regard this as a fit case for appeal to the Supreme Court.
" The question that arises for consideration in these appeals is primarily whether this order dated September 4, 1959, is vitiated by error apparent on the face of the record.
How that matter becomes relevant is because the appellant filed three applications for review of this order under O. XLVII r. 1 of the Civil Procedure Code specifying this as the ground for relief.
These applications for review were filed on November 23, 1959, and apparently notice was issued to the respondent State Government and the petition for review came on for hearing on January 6, 1961.
180 On that date the learned Judges dismissed the said applications and assigned the following as the reasons for their order: "The only ground argued in support of these review petitions is that leave to appeal to the Supreme Court was granted in similar circumstances in regard to previous year and there was no reason why leave should have been refused in these cases.
We do not think that would furnish a sufficient ground for reviewing the order dismissing the petitions for leave to file an appeal t 0 the Supreme Court.
That apart, the Supreme Court was moved under Article 136 of the Constitution for special leave and that was dismissed may be on the ground that it was not flied in time.
In the circumstances, we think that our order dated 4.9.1959 dismissing S.C.C.M.Ps No. 4823, 4825 and 4827 of 1959 cannot be reviewed.
" The appellants thereupon made applications for special leave from this Court to challenge the correctness of this last order and the leave having been granted after notice to the respondent, the appeals are now before us.
Before dealing with the arguments addressed to us on behalf of the appellant it is necessary to advert to an objection raised by learned Counsel for the respondent urging that the special leave granted to the appellant should be revoked.
We declined to permit the respondent to urge any such argument in this case primarily for two reasons.
In the first place, the special leave was granted after notice to the respondent and therefore after hearing the respondent as to any objection to the maintainability of the appeal or to the granting of special leave.
In the circumstances, any ground in relation to these matters should have been urged at that stage and except possibly in some extraordinary cases where the ground urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding, the exercise of due care; except in such 181 circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave.
Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to the notice of the Court any grounds upon which leave should be refused and the purpose of the rule would be frustrated if the respondent were permitted to urge at a later stage at the stage of the hearing of the appeal and long after the appellant has incurred all the costs that the leave granted after notice to him should be revoked on a ground which was available to him when the application for special leave was heard.
This apart, even the statement of the case filed on behalf of the respondent does not disclose any ground upon which the leave granted should be revoked: nor, of course, does it make any prayer seeking such relief.
One of the objects which the statement of the case is designed to achieve is manifestly that no party shall be taken by surprise at the hearing and this is ensured by the provision in O. XIX r. 4 of the Supreme Court Rules reading: "No party shall, without the leave of the Court, rely at the hearing on any grounds not specified in the Statement of the Case filed by him.
" Nor, of course, was there any contention that the ground that he proposed to submit came into existence after the filing of the statement of case.
It was in these circumstances that we declined to permit the respondent to develop an argument to persuade us to hold that the leave granted by this Court should be revoked, though we might add that the matter mentioned by learned Counsel for the respondent in this respect would not, even if urged at the hearing of the special leave petition, have materially assisted him in resisting the grant of special leave.
The point he desired to urge was that in the petition for special leave the appellant had averred that the decision of this Court reversing the judgment of the High Court in T.R.C. 120 of 1953 had been 182 brought to the notice of the High Court, but that this statement must be erroneous or untrue for two reasons: (1) This is not referred to in the order now under appeal, and (2) the decision of this Court was not reported in any of the law reports official or unofficial till long after January 1961 when the petition for review was heard.
It is manifest that neither of the two circumstances would by itself prove the untruth of the averment in the special leave petition.
The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them, viz., whether their order of September 1959 was or was not vitiated by error of the sort which brought it within O. XLVII.
r. 1 of Civil Procedure Code.
It is obvious that so viewed, it would not have any relevance.
As regards the other point, the appellant did not have need to wait for a report of the case in the law reports but might very well have produced a copy of the judgment of this Court and being a party to the proceeding here it is improbable that it had not a copy, so, that its statement that it drew the attention of the Court to the decision is not proved to be false by the decision not being reported till long after January, 1961.
The oral application for revoking the leave granted is therefore rejected as entirely devoid of substance.
We shall next proceed to deal with the merits of the appeals.
Before doing so however, it is necessary to advert to a circumstance which the learned Judges considered a proper reason for rejecting the petition for review.
This arises out of the second of the grounds assigned by the learned Judges in their order dated January 6, 1961, refusing to grant the review.
This may be quoted in their own words: "That apart, the Supreme Court was moved under article 136 of the Constitution for special leave and that was dismissed, may be on the ground that it was not filed in time.
" 183 The facts in relation to this matter might now be stated.
As already seen, the applications for reviewing the order dated September 4, 1959, refusing the certificates were filed on November 23, 1959.
During the pendency of those review applications the appellant filed, on November 30, 1959, petitions seeking special leave of this Court under article 136 of the Constitution but those petitions were filed beyond the period of limitation prescribed by the Rules.
An application was therefore filed along with the special leave petitions seeking condonation of delay in the filing of the petitions.
The petitions and the applications for condonation of delay came on together for hearing and this Court refused to condone the delay, so that the petitions for special leave never legally came on the file of this Court.
O. XLVII r. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred.
" In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII r. 1(1) did not stand in the way of the petition for review being entertained.
Learned Counsel for the respondent did not contest this position.
Nor could we read the judgment of the High Court as rejecting the petition for review on that ground.
The crucial date for determining whether or not the 'terms of O. XLVII.
r.1 (1) are satisfied is the date when the application for review is filed.
If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end.
The next question is as regards the effect of the refusal of this court to condone the delay in filing the petition for special leave.
Here again, it 184 was not contended that the refusal of this Court to entertain the petition for special leave on the grounds just now stated was a bar to the jurisdiction or powers of the Court hearing the review petition.
This position was not contested by the learned Advocate for the respondent either.
In these circumstances, we are unable to agree with the learned Judges of the High Court that the refusal by this Court to condone the delay in filing the petition for special leave was a circumstance which could either bar the jurisdiction of the High Court to decide the petition for review or even could be a relevant matter to be taken into account in deciding it.
If therefore their original order dated September 4, 1959, was vitiated by an error apparent on the face of the record, the failure of the special leave petition to be entertained in this Court in the circumstances in which it occurred, could not be any ground either of itself or taken along with others to reject the application for review.
We consider it would be convenient to consider the first part of the order of the High Court now under appeal after examining the principal question whether the order of September, 1959, rejecting the appellant 's petition for a certificate is vitiated by error apparent on the record.
If one analysed that order only one reason was given for the rejection of the certificate of fitness.
No doubt, in the first sentence of their order they stated that the judgment was one of affirmance, but that was merely preliminary to what followed where they recorded that the certificate was refused for the reason that the case did not involve any substantial question of law regarding the interpretation of the Constitution.
The preliminary statement that their judgment was one of affirmance would, however, seem to show that what the learned Judges had in mind were the terms of article 133 of the Constitution where alone as distinct from article 132 there is reference to a judgment of affirmance, though per incuriam they reproduced the terms of article 132(1).
As it was the case of no 185 party that any question of interpretation of the Constitution was involved, the reference to "the substantial question of law relating to the interpretation of the Constitution" must obviously have been a mistake for a substantial question of law arising in the appeal.
Though learned Counsel for the appellant stressed this ground in the order of September, 1959 as itself disclosing an error apparent on the face of the record or was at least, ,indicative that the learned Judges did not apply their minds to the consideration of the question arising in the application for a certificate of fitness, we shall proceed on the basis that this was merely a clerical error in their order and that the learned Judges had really in mind the terms of article 133(1) which had been invoked by the appellants in their application for the certificate.
On the basis that the words in the order of September, 1959 referring to a substantial question of law as to the interpretation of the Constitution were really meant to say that no substantial question of law was involved in the appeal sought to be filed in this Court how does the matter stand ? There was practically no question of fact that fell to be decided in T.R.Cs. 75 to 77 of 1956 and the sole question related to the claim to deduct the value of the groundnut on which purchase tax had been paid and which had been converted into hydrogenated oil which had been sold and which had been included in the appellant 's turnover.
In fact, these T.R.Cs. were decided by the High Court not independently on a consideration of any particular facts which arose in them, but by following the decision of the High Court in T.R.C. 120 of 1953 which had accepted the construction which the departmental authorities had placed on r. 18(2) of the Turnover & Assessment Rules.
The substantial points of law which were claimed to arise in the appeal had been set out in extension the petition seeking the certificate and, in fact, they were practically a reproduction of the contents of the earlier petition seeking a certificate against the decision in T.R.C. 120 of 1953.
The learned Judges and the learned C.J. was a party 186 to the earlier decision and to the grant of the certificate of fitness on that occasion considered these points and had stated as their opinion that substantial questions of law of general importance were involved in the case and they had given expression to these views in a judgment which we have reproduced earlier.
What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an "error apparent on the face of the record".
The fact that on the earlier occasion the court held on an 'identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous.
Similarly, even if the statement was wrong, it would not follow that it was an "error apparent on the face of the record", for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent".
A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected.
but lies only for patent error.
We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
No questions of fact were involved in the decision of the High Court in T.R.Cs. 75 to 77 of 1956.
The entire controversy turned on the proper interpretation of r. 18(1) of the turnover & Assessment Rules and the other pieces of legislation which are referred to by the High Court in its order of February 1956 nor could it be doubted or disputed that these were substantial questions of law.
In the circumstances therefore, the submission of the appellant that the 187 order of September 1959 was vitiated by "error apparent ' ' of the kind envisaged by O. XLVII r. 1, Civil Procedure Code when it stated that "no substantial question of law arose" appears to us to be clearly well founded.
Indeed, learned Counsel for the respondent did not seek to argue that the earlier order of September 1959 was not vitiated by such error.
He, however, submitted that this Court should have regard not to whether the earlier order was so vitiated or not but to the grounds which were urged by the appellant at the hearing of the application for review and that if at that stage the point in the form in which we have just now expressed was not urged, this Court would not interfere with the order rejecting the application for review.
He pointed out that at the stage of the arguments on the application for review the only ground which was urged before the Court, as shown by the judgment of the Court, was that the order of September, 1959 was erroneous for the reason that a certificate had been granted on a previous occasion.
We have extracted the text of this order of January, 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court.
The question then arises as to what is meant by "in similar circumstances in regard to a previous year".
Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956, granting the certificate of fitness in regard to the decision of the High Court in T.R.C. 120 of 1953 solely as some sort of precedent and no more.
On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error.
We have already dealt with this aspect of the matter.
We do not, however, agree that this is the proper construction of the argument that they rejected.
The order dated February 21, 1956, in relation to the previous year 188 was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the Court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September, 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it.
This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated.
The earlier order being of the same Court and of a Bench composed in part of the same Judges, the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals.
If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellant 's argument.
If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T.R.C. 120 of 1953 were not also involved in their judgment in T.R.Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical.
If, besides, they meant to say that these were not substantial questions of law within article 133(1), they were again guilty of error.
The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September, 1959.
We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed.
We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in Tungabhadra 189 Industries Ltd. vs The Commercial Tax Officer, Kurnool(1) regarding the construction of Rule 18(2) of the Turnover & Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals.
Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeal were allowed we should make no direction as regards costs against his client.
The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T.R.Cs 75, 76 and 77 really depended on the correct construction of r. 18(2) of the Turnover & Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there whether it included "hydrogenated oil".
This Court in its judgment in M/s Tungabhadra Industries Ltd. vs The Commercial Tax Officer, Kurnool(1) pronounced on the proper construction of the word 'groundnut oil ' occurring in r. 1 8 of the Turnover & Assessment Rules as they then stood.
The assessment proceedings for 1950 51, 1951 52 and 1952 53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court.
In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this Court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice.
That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought.
Of course, if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled (1) ; 190 to collect the tax as assessed and as decided in its favour by the High Court.
But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of it bright to costs.
In the result the appeal is allowed and the common judgment of the High Court in the three appeals is reversed and the petitions for review C.M.Ps 4672, 4673 and 4674 of 1959 on the file of the High Court are allowed with costs here and in the High Court one set of hearing fees.
Appeal allowed.

summary/full:
In respect of the assessment year 1949 50, the appellant while submitting his return disclosing his turnover of the sale of oil, included therein the value of the hydrogenated oil that he sold and claimed a deduction under r. 18 of the Turnover and Assessment Rules in respect of the value of the groundnuts which had been utilised for conversion into hydrogenated oil on which he had paid tax at the point of their purchase.
The sales tax authorities rejected the claim on the ground that hydrogenated groundnut oil was not groundnut oil within that rule.
This view was upheld by the High Court on February 11, 1955, in the Tax Revision Case No. 120 of 1953 filed by the appellant, but, on application, the High Court granted a certificate of fitness under article 133(1) of the Constitution of India on the ground that substantial questions of law arose for decision in the case.
For the assessment years 1950 51, 1951 52 and 1952 53, the same question as to whether hydrogenated groundnut oil was raised and decided against the appellant by the sales tax authorities and the High Court.
The appellant then applied for a certificate of fitness under article 133(1) of the Constitution, but the High Court dismissed the petition on September 4, 1959, stating: "The judgment sought to 175 be appealed against is one of affirmance.
We do not think that it involves any substantial question of law . . . nor do we regard this as a fit case for appeal to the Supreme Court.
" On November 23, 1959, applications for review were filed under 0.
47, r. 1, of the Code of Civil Procedure but they were dismissed.
The appellant then applied for special leave under article 136 of the Constitution against the orders dismissing the applications for review and leave was granted after notice to the respondent.
When the appeal came on for hearing in the Supreme Court, the respondent raised a preliminary objection that the special leave granted to the appellant should be revoked.
The grounds for revoking the special leave were not urged by the respondent at the time of the hearing of the applications under article 136, nor were they set out in the statement of case filed by the respondent under O.XVIII of the Supreme Court Rules, 1950.
Held (i) that where notice is given to the respondent before the hearing of the application for grant of special leave, no objection to the maintainability of the appeal or to the granting of special leave would be permitted to be urged at any stage after the grant of it, except possibly where the ground urged happens to arise subsequent to the grant of leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care.
(ii) that the statement in the order dated September 4, 1959, that the case did not involve any substantial question of law,was an "error apparent on the face of the record" within the meaning of 0.
47, r. 1, of the Code of Civil Procedure inasmuch as this was a case where without any elaborate argument one could point to the error and say that here was a substantial point of law which stared in the face.