judgement:
Appeal No., 132 of 1959.
Appeal from the judgment and decree dated March 23, 1956 of the Allahabad High Court in Special Appeal No. 291 of 1955.
Veda Vyasa and C. P. Lal, for the appellant.
J. P. Goyal, for the respondents.
February 6.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal on a certificate granted by the Allahabad High Court.
The brief facts necessary for present purposes are these.
The three respondents were students of G. section Hindu Intermediate College at Sikandrarao and appeared at the Intermediate (Commerce) Examination con ducted by the appellant in the year 1954.
On June 12, 1954, the result of the examination was published in newspapers and the three respondents passed in the second division.
Thereafter they prosecuted further studies.
But in December 1954, their fathers and guardians received information from the Principal of the G. section Hindu Intermediate College that the Examinations ' Committee of the appellant (hereinafter referred to as the Committee) had cancelled the result of the respondents for the examination of 1954 and further that they had been debarred from appearing at the examination of 1955.
Thereupon the respondents filed a write petition in the High Court contending that the Committee had never afforded any opportunity to them to rebut the allegations made against them and that they were never informed about the nature of the unfair means used by them in the said exa mination and the first thing they come to know was the resolution of the Committee canceling their results and debating them from appearing in the examination of 1955.
They therefore contended that they were entitled to an opportunity being 39 afforded to them to meet the case against them of using unfair means at the examination before the appellant took action against them by canceling their results and debarring them from appearing at the examination of 1955.
The procedure thus adopted by the appellant was said to be in violation of the principles of natural justice inasmuch as they were given no opportunity whatsoever to defend themselves and to show cause against the action contemplated against them.
It was further contended that the procedure adopted by the appellant violated the provisions of the U. P. Intermediate Education Act, No. II of 1921 (hereinafter referred to as the Act) and the U. P. Education Code, and therefore, the resolution canceling their results and debarring them from appearing in the later examination was without jurisdiction and illegal.
They therefore prayed for a proper writ or order canceling the resolution of the appellant.
The appellant opposed the application and its case was that the respondents had used unfair means at the examination and their cases were reported to the Committee under the Regulations and the Committee had acted under the, powers conferred on it under the Act and the Regulations framed thereunder after a thorough inquiry.
It was not disputed, however, that no opportunity had been afforded to the respondents to rebut the allegations against them in the inquiry made by the Committee which resulted in the resolution canceling the results of the examination.
A large number of contentions appear to have been urged in the High Court; but we are here only concerned with one of them, namely, whether the respondents were entitled to a hearing before the appellant decided to cancel the results.
The contention on behalf of the respondents before the learned Single Judge was that the appellant was Under a duty to act judicially and therefore the 40 respondents should have been given a hearing before any order was passed , against them.
The learned Single Judge held that no duty was cast on the Committee to act judicially and there was no statutory obligation on the Committee to give an opportunity to every examine to be heard; therefore he rejected the petition.
The respondents then went in appeal which was heared by Dayal and Brijmohan Lall, JJ., who however differed.
Brijmohan Lall, J., was of opinion that the Committee was not required to act judicially or quasijudicially when it considered cases of this kind and was acting merely administratively; be nevertheless was of the opinion that one of the rules of natural justice contained in the maxim audi alteram partem would apply in this case, even though the Committee was acting administratively.
He was therefore in favour of allowing the appeal.
Dayal J., agreed with the view of Brijmohan Lall, J., that in the present case no duty was cast on the Committee to act judicially and that the action of the Committee was merely administrative.
He how ever did not agree that the Committee acted in violation of the principles of natural justice inasmuch as it did not give a hearing to the respondents.
He was of the view that. is the Committee was acting merely administratively it was not bound to give a hearing, as the maxim audi alteram partem applied only to judicial or quasijudicial tribunals.
The two learned Judges also differed on two other points with which we are not concerned.
Eventually they referred three questions to be answered by another learned Judge and one of these questions was whether the failure of the Committee to provide an opportunity to the respondents of being heard vitiated its order, which was of an administrative nature.
The matter then camo before a third learned Judge, Agarwala, J. He was doubtful whether the 41 view of the bench that there was no duty cast on the Committee to act judicially in the present case was correct; but as on that matter the two learned Judges were in agreement, he dealt with the case on the basis that the Committee was acting merely administratively, Even so, he came to the conclusion that the respondents were entitled to a hearing and agreed with the view of Brijmohan Lall, J. Consequently, the appeal was placed before the Bench again and in accordance with the opinion of the third Judge it was allowed.
Then followed an application by the appellant for leave to appeal to this court, which was granted; and that is how the matter has come up before us.
The main contention on behalf of the appellant is that the High Court was wrong in the view it took that an opportunity for hearing was iiecessary in this case even though the Committee acted merely administratively.
It is contended that where a body is acting merely administratively, it is not necessary that it should give a hearing to a party who might be affected by its decision and that the principles of natural justice, including the maxim, audi alteram partem, apply only to judicial or quasi judicial bodies, i.e., bodies on whom a duty is cast to act judicially.
It is submitted that where no such duty is cast on a body and it is acting merely administratively there is no necessity for it to hear the person who might be affected by it,.
, order.
The respondents on the other hand contend that though the final decision of the High Court is correct, the High Court was not right in holding that the Committee was acting merely administratively in a matter of this kind; they contend that considering the entire circumstances which operate in cases of this kind, the High Court should have held that there was a duty to act judicially and therefore it was necessary to give an opportunity to the respondents to be heard before action was taken against them.
It is submitted that the 42 mere fact that there was nothing express in the Act or the Regulations framed thereunder which might make it obligatory for the Committee to call for an explanation and to hear the examinees whose cases it was required to enquire into was not wholly determinative of the question whether a duty was cast on the Committee in cases like this to act judicially.
The first question therefore which falls for consideration is whether any duty is cast on the Committee under the Act and Regulations to act judicially and therefore it is a quasi judicial body.
What constitutes , 'a quasi judicial act" was discussed in the Province or Bombay vs Kusaldas section Advani.(1) The principle, have been summarised by Das, J. (as he was then), at p. 725 in these words: "The principles, as I apprehend them are: (i) that if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a vis and prima farcie and in the absence of any thing in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act ; and (ii) that if a statutory 'authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority Will yet be a quasi.
judicial act provided the authority is required by the statute to act judicially.
(1) ; , 725.
43 In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi judicial act if the authority is nevertheless required by the statute to act judicially.
" These principles have been acted upon by this Court in latter cases: see Nagendra Nath Bora vs The Commissioner of Hills Division & Appeals, Assam(1), Shri Radheshyam Khare vs The State of Madhya Pradesh(2), Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation("), and Shivaji Nathubhai vs The Union of India(4).
Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not.
The inference whether the authority acting under a statute where it is silent has the duty to act.
judicially will depend, on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute.
A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively:(vide observations of Parker, J. in R. vs Manchester Legal Aid Committee)(5).
(1) ; (2) (3) [1959] Supp. 1 S.C.R. 319.
(4) ; (5) , 44 We must therefore proceed to examine the pro. visions of the Act and the Regulations framed thereunder in connection with matters of this kind to determine whether the Committee can be said to have the duty to act judicially when it deals with cases of examines using unfair means in examination halls.
Under s.7 of the Act, the Board constituted thereunder has inter alia powers to prescribe courses of instruction, to grant diplomas and certificates, to conduct examinations to admit candidates to its examinations to publish the results of its examinations, and to do all such things as may be requisite in order to further the objects of the Board as a body constituted for regulating and supervising High School and Intermediate education.
Under section 1 3, the Board has power to appoint and constitute various committees, including the examinations ' committee, and under section 14, the Board can delegate its power. ; by Regulations to such committees.
Section 15 gives power to the Board to make Regulations with respect to the constitution, powers and duties of committees, the conduct of examinations, and all matters which by the Act may be provided for by Regulations.
Section 20 gives power to the Board and its committees to make bye laws consistent with the Act and the Regulations.
It will be clear from the above that the Act makes no express provisions as to the powers of the committees and the procedure to be adopted by them in carrying out their duties, which are left to be provided by Regulations, and we have therefore to look to the Regulations framed under section 15 to see.
what powers and duties have been conferred on various committees constituted under the Regulations.
Section 13 (1) makes it incumbent on the Board to appoint the Committee and Chap.
VI of the Regulations deals with the powers and duties of the Committee.
Rule 1 (1) of Chap.
VI with which we are particularly concerned reads as 45 follows: "It shall be the duty of the Examinations ' Committee subject to sanction and control of the Board.
" "(1) to consider cases where examines have concealed any fact or made a false statement ill their application forms or a breach of rules and regulations to secure undue admis sion to an examination or used unfair means or committed fraud (including impersonation) at the examination or are guilty or a moral offence or indiscipline and to award penalty which may be one or more of the following : (1) withdrawal of certificate of having passed the examination ; (2) cancellation of the examination; (3) exclusion from the examination.
" There is however no provision in Chap.
VI as to how the Committee will carry out the duty imposed on it by r. 1 (1).
Further, there is no express provision in the Act or the Regulations casting a duty on the Committee to act judicially when exercising its powers under r. 1 (1); and the question whether the Committee has to act judicially when exercising these powers will have to 'be decided on an examination of all the circumstances relevant in the matter.
At the same time, there is nothing express in the Act from which it can be said that the Committee is not under a duty to act judicially.
It is true that there is no procedure provided as to how the Committee will act in exercising its powers under r. 1 (1) and it is.
further true that there is no express provision in that rule requiring the Committee to call for an explanation from the examines concerned and to hear the examines whose case,% ;it is required to consider.
But we are of opinion that the mere fact that the Act or the Regulations do not make it obligatory on the Committee to call for an explanation and to 46 hear the examiner is not conclusive on the question whether the Committee acts as a quasi judicial body in exercising its powers under r. 1 (1).
Even though calling for an explanation and hearing the examine may not have been made expressly oblitory by the Act or the Regulations, it is obvious that the Committee when it proceeds to decide mat ters covered by r. 1 (1) will have to depend upon materials placed before it, in coming to its decision.
Before the Committee decides to award any penalty it has to come to an objective determination on certain facts and only when it comes to the conclusion that those facts are established that it can proceed to punish the examinee concerned.
The facts which the Committee has to find before it takes action are (i) whether the examinee has concealed any fact or made a false statement in his application form; or (ii) whether the examinee has made a breach of the Rules and Regulations to secure under admission to an examination ; or (iii) whether the examinee has used unfair means at the examination ; or (iv) whether the examinee has committed fraud (including impersonation) at the examination ; or (v) whether the examinee is guilty of moral offence or indiscipline.
Until one or other of the five facts is established before the Committee, it cannot proceed to take action under r. 1 (1).
In order to come to the conclusion that one or other of these facts is established, the Committee will have to depend upon materials placed before it, for in the very nature of things it has no personal knowledge in the matter.
Therefore, though the Act or the Regulations do 47 not make it obligatory on the Committee to call for an explanation and hear the examinee, it is implicit in the provisions of r. 1 (1) that the Committee must satisfy itself on materials placed before it that one or other of the facts is established to enable it to take action in the matter.
It will not be possible for the Committee to proceed at all unless materials are placed before it to determine whether the examinee concerned has committed some misconduct or the other which is the basis of the action to 1 be taken under r. 1 (1).
It is clear therefore that consideration of materials placed before it is necessary before the Committee can come to any decision in the exercise of its powers under r. 1 (1) and this can be the only manner in which the Commit, tee can carry out the duties imposed on it.
We thus see that the Committee can only carry out its duties under r. 1 (1) by judging the Materials, placed before it.
It is true that there is no lis in the present case, in the sense that there are not two contesting parties before the Committee and the matter rests between the Committee and the examinee; at the same time considering that materials will have to be placed before the Committee to enable it to decide whether action should be taken under r. 1 (1), it seems to us only fair that the examinee against whom the Committee is proceeding should also be heard.
The effect of the decision of the Committee may in an extreme case blast the career of a young student for life and in any case will put a serious stigma on the examinee concerned which may damage him in later life.
The nature of misconduct which the Committee has to find under r. 1 (1) in some cases is of a serious nature, for example, impersonation, commission of fraud, and perjury; and the Committee 's decision in matters of such seriousness may even lead in some cages to the prosecution of the examinee in courts.
Considering therefore the serious following the 48 decision of the Committee and the serious nature of the misconduct which may be found in some cases under r. t (1), it seems to us that the Committee must be held to act judicially in circumstances as these.
Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise or its power under r. 1 (1).
We are therefore of opinion that the Committee when it exercises its powers under r. 1 (1) is acting quasijudicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee.
This view was taken by the Calcutta High Court in Dipa Pul vs University of Calcutta, (1) and B. C. Das Gupta vs Bijoyranjan Rakshit, in similar circumstances and is in our opinion correct.
It is urged on behalf of the appellant that there are a large number of cases which come up before the Committee under r. 1 (1), and if the Committee is hold to act judicially as a quasijudicial tribunal in the matter it will find it impossible to carry on its task.
This in our opinion is no criterion for deciding whether a duty is cast to act judicially in view of all the circumstances of the case.
There is no doubt in our mind that considering the totality of circumstances the Committee has to act judicially when taking action under r. 1 (1).
As to the manner in which it should give an opportunity to the examinee concerned to be (1) A. I. R. (2) A. 1.
R. 49 heard, that is a matter which can be provided by Regulations or Bye laws if necessary.
As was pointed out in Local Government Board vs Alridge, (1) all that is required is that the other party shall have an opportunity of adequately presenting his case.
But what the procedure should be in detail will depend on the nature of the tribunal.
There is no doubt that many of the powers of the Committee under Chap.
VI are of administrative nature; but where quasi judicial duties are entrusted to administrative body like this it becomes a quasi judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee.
It is not however necessary to pursue this matter further, for it is not in dispute that no opportunity whatsoever was given to the respondents in this case to give an explanation and present their case before the Committee.
We are therefore of opinion that though the view of the High Court that the Committee was acting merely administratively when proceeding under r. 1 (1) is not correct, its final decision allowing the writ petition on the ground that no opportunity was given to the respondents to put forward their cases before the Committee is correct.
We therefore dismiss the appeal.
No order as to, in the circumstances.
Appeal dismissed.

summary/full:
The three respondents were declared by the appellant to have passed the Intermediate examination.
Thereafter they prosecuted further studies and subsequently the fathers and guardians of the respondents were informed that the Examination Committee of the Board had cancelled the examination results of the respondents and that they were debarred from appearing at the next examination.
The respondents filed a writ petition in the High Court of Allahabad contending that since the Examination Committee had never afforded any opportunity to them to rebut the allegations made against them the Examination Committee had violated the principles of natural justice.
They also contended that the Committee had violated the provisions of the U. P. Intermediate Education Act, 192 1.
The appellant while admitting that no opportunity had been afforded to the respondents to rebut the allegations against them, contended that the Examination Committee was only an administrative body acting merely administratively and it was not bound to give a hearing to a party who might be affected by its decision.
The Single judge who heard the writ petition held that the Committee was not bound to act judicially and there was no statutory obligation on the Committee to give an opportunity to be heard.
The respondents appealed to a Division Bench and one of the judges of Bench held that even though the Committee was not bound to act judicially or quasijudicially and it was acting administratively it ought to have given an opportunity to the respondents of being heard.
The other judge was of the opinion that since the committee was acting only administratively it was not bound to give a hearing.
The matter then went before a third judge who held that even though the Committee was acting merely administratively the respordents were entitled to a hearing.
The appellant thereupon appealed to this Court.
The appellant contended that the Committee was only a body a ing administratively and that the principles of natura 37 justice, including the maxim audi alteram partem apply only to judicial or quasi judicial bodies.
The respondents contended that the High Court was wrong in holding that the Committee was only an administrative body.
It was further submitted by them that the mere fact that there was nothing express in the Act or the Regulations framed thereunder which might make it obligatory for the Committee to call for an explanation and to hear the examinee whose case it was required to enquire into was not wholly determinative of the question whether a duty is cast on the Committee in cases like this to act judicially.
Held, that the inference whether the authority acting under a statute, where it is silent, has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of disposal provided, the objective criterion if any to be adopted, the effect of the decision on the persons affected and other indicia afforded by the statute.
The mere fact that the Act in question or the relevant Regulations do not make it obligatory on the Committee to call for anexplanation and to bear the examinee is not conclusive on the question whether the Committee acts as a quasi judicial body when exercising its powers under Ch.
VI, r. 1 (1), of the Regulations.
It is obvious that the Committee when it proceeds to decide matters covered by r. 1 (1) will have to depend upon materials placed before it and before it decides to award any penalty it has to come to an objective determination on certain facts and this is the only manner in which it can carry out the duties impos.
ed on it.
Even though there is no lis in the present case in the sense that there are not two contending parties before it the Committee should hear the examinees whose lives may be seriously affected by its decision even subjecting them in some cases to criminal prosecution on charges of impersonation, fraud and perjury.
Though therefore there is nothing express one way or other in the Act or the Regulation casting a duty on the Committee to act judicially, the manner of the disposal and the serious effects of the decision of the Committee lead to the conclusion that a duty to act judicially is cast on the Committee and the Committee when it acts under r. 1 (1) is acting quasi judicially and the principles of natural justice will apply to its proceedings.
Province of Bombay vs Kusaldas section Advani, ; , Yagendranath Bora vs Commissioner of Ilills Division & Appeals, Assam, ; Shri Radheshyam Khore vs State of Madhya Pradesh, , Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corpo ration, [1959] Stipp.
1 section C. R. 319 and Nathubhai vs Union (if lndia; , , followed.


judgement:
Appeals Nos.
188 to 191 of 1956.
72 Appeals from that judgment and decree dated April 13, 1955, of the former "Nagpur High Court in Civil Suits Nos. 3, 4, 9 and 10 of 1955 (Original Nos.
M.C.C. 194, 195, 200 and 202 of 1954).
M. C. Setalvad, Attorney General .for India.
A. V. Viswanatha Sastri, J. V. Jakatdar and I. N '.
Shroff, for the, appellant (in C. A., No. 188 of 56).
H. N. Sanyal, Additional Solicitor General of India, and G. C. Mathur, for the respondent (in C. A. No. 188 of 56).
J. V: Jakatdar and 1.
N. Shroff for the appellants (in C. As.
Nos. 189 to 191 of 56).
section T. Desai and G. C. Mathur, for the respondent (in C. A. No. 190 of 56).
G. C. Mathur, for the respondent (in C. As.
Nos. 189 and 191 of 56).
February 7.
The Judgment of the Court was delivered by AYYANGAR, J.
Section 143(2) of the Government of India Act, 1935 enacted.
"43(2).
Any taxes, duties, cesses or fees which, immediately before the commencement of Part III of this Act, were being lawfully levied by any Provincial Government, municipality or other local authority or body for the purposes of the Province, municipality, district or other local area under a law in force on the first day of January, nin eteen hundred and thirty five, may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Federal Legislative List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by the Federal Legislature.
" The precise import, significance and effect of the 73 words "continue to be levied and to be applied to the same purposes until provision to the contrary is made by the Federal Legislature" is the common question which arises in these four appeals which come before us by virtue of certificates under article 132 of the Constitution granted by the High Court of Madhya Pradesh at Nagpur.
Section 51 of the Central Provinces and Berar Local Self Government Act, 1920 enacted : "51.
(1) Subject to the provisions of any law or enactment for the time being in force a District Council may, by a resolution passed by a majority of not less than two thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate other than those specified in sections 24, 48, 49, and 50.
(2). . . . . . . . . (3). . . . . . . . .
By virtue of the power thus conferred the District Council of Bhandara which was "a local authority" constituted under this Act of 1920 imposed a tax on the export of bidis and bidi leaves by rail out of the Bhandara district by a resolution dated May 14, 1925, as amended by another dated April 18, 1926.
The tax was at the rate of 4 annas per maund on bidis and 2 annas per maund on bidi leaves.
The Local Government framed rules for the collection of the tax under section 79 of the Act of 1920, and the said tax was being collected by this local authority on April 1, 1937, when Part III of the Government of India Act came into force.
It is now common ground that the tax thus levied and collected was "a terminal tax on goods carried by railway" covered by entry 58 in the Federal, Legislative List List I in the Seventh Schedule to the Government of India Act of 1935.
The result of this tax being in the Federal Legislative List, it is manifest, is that the Provincial Legislature 74 could not thereafter freshly impose such a tax under its legislative power.
By reason of the provision however of section 143 (2) of the Government of India Act, 1935, extracted earlier, the local authority continued to retain the authority to levy and collect the said tax and the tax continued to be collected by the District Council even after April 1, 1937 when Part III of the Government of India Act came into force.
While so, the Central Provinces and Berar Local Self Government Act, 1920, was repealed and was replaced by the Central Provinces and Berar Local Government Act, 1948, which came into force on June 11, 1948.
District Councils which were the units of local government administration under the Act of 1920 were replaced by Janpads which comprised smaller areas and as a result the area which was under the jurisdiction of the District Council of Bhandara under the Local Self Government Act of 1920, came to be constituted into three Janpads, viz., those of Gondia, Bhandara and Sakoli these being the three Tahsils comprised in the district and the three Janpads were administered by three Janpad Sabhas formed under the Act of 1948.
There were provisions in the later enactment providing for continuity in the powers to be exercised by the District Councils whom the former replaced.
But what is of relevance to the points arising in the present appeals are those contained in a. 192 of the Act of 1948 which, as originally enacted, ran "On and from date on which this Act comes into force, the Central Provinces and Berar Local Self Government Act, 1920, shall be repealed : Provided that (a) all local authorities constituted under the said Act shall continue to function there under for such time till the constitution of 75 the Sabhas as the Provincial Government may, by notification, specify; (b) all rules and bye laws made, all noti fications published, all orders issued and all licences and permissions granted under the said Act and in force immediately be fore the commencement of this Act shall, so far as they are consistent with this Act, be deemed to have been respectively made, published, issued and granted thereunder;, (c) all rates, taxes and cesses due to the district Council or Local Board shall be deem ed to be due to the Sabha to whose area they pertain; and (d) all references made in any Act of the Provincial Legislature to the said Act shall be read as if made to this Act or to the corresponding provision thereof.
" Pausing here, two matters which figured largely in the arguments require to be noticed in the provisions of this section.
The first is that there was an express repeal of the Local Self Government Act of 1920 effected by the main part of the section.
The second is that the repeal was not absolute and unconditional but was modified, by a saving which continued the operation of certain of the provisions of the repealed Act.
But the terms in which the right to collect the rates, taxes and cesges was continued in favour of the Janpad Sabhas which replaced the District Councils under cl.
(c) was capable of being construed as not enabling the future imposition of the rate, cess etc, by the Janpad sabhas.
The scope and meaning of this clause which is one of the principal matters to be considered in these appeals we shall reserve for later consideration but at this stage it might be mentioned that the clause is certainly capable of being understood as transferring to the Sabhas only 76 the right to collect the rates, taxes or cesses which had accrued due to the District Councils which had remained unpaid on the date when by virtue of the first part of 192 the Act of 1920 stood repealed and the District Councils ceased to exist.
If this were the proper meaning of this clause it is obvious that the Janpad Sabhas could no longer levy the terminal tax oil bidis and bidi leaves where the export was effected on or after June 11, 1948, on which date by virtue of the Act of 1948, coming into force the earlier Act of 1920, stood repealed.
The Janpad Sabhas were, however, continuing the levy and the Provinoial Legislature sought to put the matter beyond doubt by an amending Act of 1949 by which cl.
(b) of the proviso to section 192 was replaced by a new clause reading: ""All rules and bye laws and orders made, notifications and notices issued, licences and permits granted, taxes imposed or assessed, ceases (other than additional cesses imposed in accordance with section 49 of the said Act), fees, tolls or rates levied, contracts entered into and suits instituted and proceedings taken under the said Act and in force immediately before the commencement of this Act shall continue to be in force and in so far as they are not inconsistent with this Act, they shall be deemed to have been respectively made, issued, granted, imposed or assessed levied, entered into, instituted and taken under this Act until new provisions are made tinder the appropriate provisions of this Act." and by section 39 of the Amending Act this amendment was given retrospective effect from the commencement of the Local Government Act of 1948.
It was not in dispute that if the terms of el.
(b) as amended by the Act of 1949 had found a place in the Local Government Act of 1948 when originally enacted.
the levy of this tax by the Janpad Sabhas would 77 have been valid.
It is only necessary to add that if this tax had been lawfully levied by the Janpad Sabhas immediately before January 26, 1950, they could continue to be levied after Constitution came into force nothwithstanding the repeal of the Government of India Act by the Constitution and notwithstanding terminal taxes being a tax solely leviable by the Union List in Sch.
VII) by reason of the provision contained in article 277 of the Constitution reading: "277.
Any taxes.
duties, ceases or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, notwith standing that those taxes, duties, ceases or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.
" It would thus be seen that in order to sustain the claim, of the respective Janpad Sabhas who are the respondents in these four appeals to continue to lawfully levy the terminal tax it should be established either that cl, (c) to the proviso to a. 192 enabled them to do so or that the amendment effected to proviso (b) to a. 192 of the Act of 1948 was validly enacted.
Before considering this question it would be of advantage if we set out the facts of the cases under appeal.
It is sufficient to refer to the facts in Civil Appeal 188 of 1956 because, except for the identity of the appellants and the amounts involved, the matter in controversy is exactly similar, Rama Krishna Ramanath appellant in Civil Appeal 188 is a proprietary concern carrying on business, alia, in manufacturing and selling bidis.
In the 78 course of that business they export bidis to various places outside the territorial limits of the Janpad Sabha, Gondia.
The Janpad Sabha, Gondia demanded and collected taxes when the export took place from railway stations within its territorial jurisdiction.
Between January 26, 1950, and June 30, 1952, the respondent Sabha had collected tax totaling Rs. 3,818/15/3, the appellant concern contending that from the date of the coming into force of the Constitution the imposition and collection of the terminal tax by the respondent Sabha was illegal, because the right to levy terminal taxes was vested exclusively in the government of the Union under entry 89 in the First List to the 7th Schedule to the Constitution and sought the refund of this sum of tax from the respondent Sabha and also required that it should desist from continuing the imposition and levy of this tax, and when the request was not needed, served notice on the Sabha.
In consequence of this notice though the Sabha discontinued the collection of the tax, it refused to refund the tax already collected.
Thereupon the appellant instituted a civil suit inthe court of the Civil Judge at Gondia praying for a decree for the sum of Rs. 3,818/15/3 and costs.
The suit was resisted and thereafter this alongwithseveral similar suits including three by the appellants in the other three appeals were all withdrawn to the High Court under article 228 of the Constitution for deciding the substantial question of law as to the interpretation of the Constitution and of the Government of India Act as to whether the levy of the tax by the respondent Sabha was lawful or not These suits were consolidated and were disposed of by a common judgment dated April 13, 1955, by which all the suits were dismissed but a certificate was granted under article 132 of the Constitution.
On the strength of the certificate four of the aggrieved plaintiffs filed appeals to the Courts and that is how the matter is before us.
79 Before considering the submissions made to us by the learned Attorney General for the appellant it would be convenient to state the exact factual position relating to the levy of the impugned tax : (1)The tax being one on goods exported out of the local area by rail would answer the description of a terminal tax falling within the exclusive jurisdiction of the Central Legislature under the Government of India.
Act, 1935.
The position has continued to be the same under the distribution of legislative power in relation to taxes under the Constitution.
The result would, therefore, be that but for the saving contained in section 143(2) of the Government of India Act, 1935 it would not have been legally competent for the local authority to continue to levy the tax after the Government of India Act came into force ; similarly but for article 277 that levy could not have been continued beyond January 26, 1950.
On the facts stated earlier it would be seen that the right of the local authority to levy the tax would be ultimately dependent on the same being authorised by section 149(2) of the Government of India Act.
(2)The, tax that was sought to be levied by the respondent Sabhas and which was challenged as unauthorised and illegal was identical in the incidence as the tax which the District Council of Bhandara lawfully levied, just prior to the commencement of Part III of the Government of .India Act, 1935.
By incidence we mean the subjectmatter of the tax, the taxable event as well as the rate of the duty.
In other words, the tax now sought to be levied and that which was lawfully imposed and collected prior to April 1, 1937 were exactly identical in their effect and operation.
Similarly there was no controversy as regards either the identity of the area in aid of whose local administration the tax *as now sought to be collected, nor as regards the purposes for which they 80 were utilised as compared with what prevailed on April 1, 1937.
The principle contention however, raised on behalf of the appellant before the High Court was based upon a denial of the identity of the authorities three Janpad Sabhas with the District Council, Bhandars which levied and collected the tax prior to April 1, 1937.
The learned Judges of the High Court rejected this contention and held that the three Janpad Sabhas which replaced the District Council of Bhandara were in substance identical with the latter principally for the reason that the area covered by the three newly created Janpads was the same as that for which the District Council functioned and that the purposes for which the tax collected would be utilized which are the, criteria specified in section 143(2) were exactly the 'same, Just as it could not be disputed that if there were any change in the composition of the District Council the identity of a local authority would not be altered for the purposes of section 143(2), the mere splitting up of that local area for being administered by a plurality of Local Government Units would not effect any change material for the purposes of the continued exigibility of the tax under section 143(2).
The learned Attorney General therefore very properly did not press before us this point based upon the disappearance of the District Council and its being replaced by the respondent Sabhas as any ground for denying to the respondent Sabhas the right to levy the tax.
The only point that was urged before us in challenge of the right of the respondent Sabhas to continue the levy of this terminal tax may be formulated thus: The Provincial Legislature of Central Provinces & Berar in exercise of its legislative power under item 13 of the Provincial Legis lative List enacted the Local Government Act, 81 1948 and validly repealed the Act of 1920 under which this tax was levied.
As part of the same legislation and taking effect at the same time it was open to that Legislature to have continued the provisions of the repealed Act of, 1920 under ,which the impugned tax was levied so as to enable the newly created Janpad Sabhas to exercise the fiscal powers of the District Councils which they replaced, thus so to speak modifying or qualifying the repeal.
Such a continuance could be provided by a saving clause couched in appropriate phraseology to effectuate such an intention.
If this had been done the source of legal authority to levy the tax would, even after the Act of 1948 came into force, have been the repealed Act of 1920 which to the extent of the saving would be deemed to have continued in force.
But this was not done.
There was, no doubt, a saving under the proviso to section 192 but the saving in respect of the taxes which was contained in sub cl.(c) to the proviso was confined to the recovery of taxes which had accrued due on the date of the repeal but which still remained uncollected and the purpose of the sub clause was to effect a distribution of those assets, viz., of the accrued arrears among the several Janpad Sabhas which replaced each District Council, so that when on June II, 1948, the Act of 1948 came into force, the effect of it was that the repeal of the Act of 1920 was for all purposes relevant to the matter now in controversy complete and with it the power to levy the tax in future stood.
extinguished, save only as regards the right to collect the arrears which had accrued due to the District Councils before that date.
No doubt, the Provincial Legislature effected an amendment to section 192 in 1949 by which the saving was extended to include the right of the Janpad Sabhas to continue to levy the impugned tax and this amendment was given retrospective effect as from Tune 11, 1948, but 82 this amendment was beyond the legislative com.
petence of the Provincial Lagislature since in pith and substance it was virtually a legislation expressly conferring upon the Janpad Sabhas the right to levy a terminal tax a right which they did not possess before that date and unless the Legis lature was competent to enact a law in relation to such a tax it could not validly confer upon the local authority what in legal effect should be considered to be a fresh right to levy the tax.
The argument was also presented in a slightly different form by saying that on the terms of section 143(2) of the Government of India Act there was a provision only for the continuance of the tax and that when once that continuity was broken by a valid piece ' of legislation such as took place in this case when the Local Self Government Act 1920 wes repealed without a properly drafted saving clause enabling the continued levy of the tax, the discontinuity created thereby could not thereafter be repaired and the gal) filled by further legislation even though it purported to be with restrospective effect.
Mr. Sanyal learned Additional Solicitor General who appeared for the respondent Sabhas submitted several answers to sustain the validity of the continued imposition of the tax, He first urged that the effect of section 143 (2) of the Government of India Act, 1935 was in effect to vest in Provincial Legislatures a plenary power to legislate in respect of every tax which was being lawfully levied by local authorities etc.
in the Province prior to the commencement of Part III of the Government of India Act so "much so that even if the amendment efrected to section 192 by the Local Government (Amendment) Act of 1949 be treated as itself a fresh imposition of the tax its validity could not bechallenged.
We must express our inability toaccept this extreme contention.
Section 143 (2) which is a saving clause and 83 obviously, designed, to prevent a dislocation of the finances of Local Governments and of local authorities by reason of the coming into force of the provisions of the Government of India Act distributing heads of taxation on lines different from ' those which prevailed before that date, cannot be construed as one conferring a plenary power to legislate on those topics till such time as the Central Legislature intervened.
Such a construction would 'necessarily involve a power in the Provincial Legislature to enhance the rates of taxation a result we must say from which Mr. Sanyal did not shrink, but having regard to the language of the section providing for a mere continuity and its manifest purpose this construction must be rejected.
The next point urged by Mr. Sanyal was based on the construction which he aought to put on cl.(c) of the proviso to section 192 of the Local Government Act of 1948.
He submitted that the words ,,due to the District Council" were wide and apt enough to include not merely the taxes that had accrued due on the date of the repeal of the Act of 1920 but even the amounts which accrued later and became payable subsequent to that date "Due" he said meant ,,payable" and as the words of the sub section did not specifically limit the period when the cess became payable to some time anterior to the repeal of the Act of 1920.
it ought to be read as including those amounts which accrued due and became payable even thereafter.
We find it difficult to accept this submission either.
The difficulty in accepting it is created only in part by the use of the expression "due" but the main hurdle in the way of the respondent is that what is saved by the sub clause (and is distributed among the Janpad Sabbas which replaced the District Councils), is specified as a cess ' rate etc.
due to a District Council.
The rate, cess or duty due to a District Council could obviously be only that which 84 had accured due to a District Council while that body was in existence and with the extinction of the District Councils by the repeal of the Act of 1920 there could be no question of any further sums being due to such a body.
Mr. San _Val however sought to get over this situation by suggesting that the words "due to a District Council" were merely descriptive of the nature of the tax and did not pre dicate that it was an amount due to a particular body on the date when it became due.
In our opinion this is not an interpretation which the words could reasonably bear and we have, therefore, no hesitation in rejecting this argument.
It was then submitted that even if the words of cl.
(c) of the proviso would not ordinarily include a saving as regards the right of the Janpad Sabhas to levy the tax in the future, still we should adopt that construction as being in consonance with and for giving effect to the intention of the legislature which made it clear that that was so by enacting the amendment to section 192 by the Act of 1949 within a year or so after the Act of 1948.
We consider that this submission also deserves, in the circumstances of the present case, to be rejected.
It is a cardinal principle of statutory construction that the intention of the legislature should be gathered from the words of the enactment.
If, as we have held, those words are incapable of the construction that there was a savig of the right of the Janpad Sabbas to impose and collect the tax apart from the right to collect the arrears of tax which accured due while the District Council was in existence,that construction cannot be modified and the legislative intent with which that proviso was enacted supplemented by a reference to what the legislature did later.
No doubt, there is authority for the position that when the meaning of the words used in an enactment is ambiguos or obscure, subsequent statutes might sometimes be used as what has been termed "a parliamentary exposition" of the obscure phraseology.
It is hardly 85 necessary to discuss the permissible limits of this node of construction for the purpose of the present lase, because the prime conditions for invoking that rule are absent here there is no obscurity or ambiguity in the words of el.
(c) and secondly if the learned Attorney General is right, the Provincial Legislature had no legislative capacity to enact the Amending Act of 1949 and this must include legislation either by way of explanation or exposition, and of course by positive enactment.
If there is incapacity to enact retrospective legislation on the matter, the position is not rendered different by viewing it as parliamentary exposition.
The validity of the amendment effected by the Act of 1949 must be judged independently and on its own inerits and its terms cannot be used as a guide to the interpretation of what the legislature in enacting section 192 of the Act 1948 intended by the words in cl.
The next submission was that as the Act of 1949 amended the terms of section 192 so as to save the power of the Janpad Sabhas to levy the cess with retrospective effect from the date when the Act of 1920 stood repealed, there was in the eye of the law a continuity in the levy of the cese; or rate and so no hiatus or period of discontinuity existed 'such as had been suggested by the learned Attorney General and the existence of which was the entire foundation of his argument.
It must, however, be mentioned that the learned Attorney General was not oblivious of this feature of the legislation of 1949, viz., that it purported to operate as it were to close the gap, but his submission was that if, in fact, the gap existed and there was factually a period of discontinaity, the legislature which had no authority to enact positive legislation with reference to the topic in May 1949 was incompetent to pass an enactment with retrospective effect.
In our opinion, this argument of Mr. Sanyal requires serious consideration and the answer would 86 turn on the proper construction of the terms of section 143(2) of the Government of India Act.
The first matter to be considered would be the source of the legislative power to enact the Local Government Act of 1948.
In so far as the constitution of local authorities, their territorial distribution, the endowing them with powers, jurisdiction and authority in general are concerned, the legislative power therefore is to be found in entry 13 of the Provincial Legislative List II to Sch.
VII of the Government of India Act, 1935 reading : "Local Government, that is to say, the constitution and powers of municipal corpora tions, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self government on village administration".
It must however be observed that merely because the legislature is empowered under this entry to constitute local authorities and vest them with powers and jurisdiction it would not follow that these local bodies could be vested with authority to levy any and every tax for the purpose of raising revenue for the purposes of local administration.
They could be validly authorised to raise only those taxes which the Province could raise under and by virtue of the relevant entries in the Provincial Legislative List.
This is on the principle that the Province could not authorise local bodies created by it to impose taxes which it itself could not directly levy for the purposes of the Provincial Government.
Now comes the question whether the Provincial Legislature was competent, by legislation, to discontinue the levy of the tax by effecting a repeal of the taxing provision contained in the Local Self Government Act of 1920.
There is no doubt that the general principle is that the power of a legislative body to repeal a law is co extensive with its power to enact each a law, as would be seen from 87 the following passage in.
the judgment by Lord Watson in Attorney General for Ontario vs Attorney General for the Dominion(1) : "Neither the Parliament of Canada nor the provincial legislatures have authority to repeal statutes Which they could not directly enact." But obviously its application in particular instances would be controlled by express constitutional provision modifying the same.
We have such provision in the case on hand in section 143(2) of the Government of India Act, 1935.
In the context the relevant words of the sub section could only mean "May continue to be levied if so desired by the Provincial Legislature" which is indicated by or is implicit in the use of the expression "May" in the clause 'may be continued until provision to the contrary is made by the Federal Legislature.
" This would therefore posit a limited legislative power in the Province to indicate or express a desire to continue or not to continue the levy.
If in the exercise of this limited power the Province desires to discontinue the tax and effects a repeal of the relevant statute the repeal would be effective.
Of course, in the absence of legislation indicating a define to discontinue the tax, the effect of the provision of the Constitution would be to enable the continuance of the Dower to levy the tax but this does not alter the fact that the provision by its implication confers a limited legislative power to desire or not to desire the continuance of the levy subject to the overriding power of the Central Legislature to put an end to its continuance and it is on the basis of the existence of this limited legislative power that the right of the Provincial Legislature to repeal the taxation provision under the Act of 1920 could be rested.
Suppose for instance, a Provincial Legislature desires the continuance of the tax but considers the rate too High and (1)[1896] A. C. 348, 366.
88 wishes it to be reduced and passes an enactment for that purpose, it cannot be that the legislation is incompetent and that the State Government must permit the local authority to levy tax at the same rate as prevailed on April 1, 1937 if the latter desired the, continuance of the tax.
If such a legislation were enacted to achieve a reduction of the rate of the duty, its legislative competence must obviously be traceable to the power contained in words "may continue to be levied" in section 143(2) of the Government of India Act.
If we are right so far it would follow that in the exercise of this limited legislative power the Provincial Legislature would also have a right to legislate for the continuance of the tax provided, if of course, the other conditions of section 143(2) are satisfied, viz., (1) that the tax was one which was lawfully levied by a local authority for the purposes of a local area at the commencement of Part III of the Government of India Act.
(2) that the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised and the purposes for which the utilisation is to take place continue to be the same and (3) the rate of the tax is not enhanced nor its incidence in any manner altered, so that it continues to be same tax.
If as we have hold earlier there is a limited legislative power in the Province to enact a law with reference to the tax levy so as to continue it, the validity of the Act of 1949 which manifested the legislative intent to Continue the tax without any break, the legal continuity being established by the retrospective, operation of the provision, has to be upheld.
The appeals therefore fail and are dismissed with costs one set of hearing fees.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Under the C. P. and Berar Local Self Government Act 1920, the District Council of Bhandara.
in 1925, imposed a terminal tax on the export of bidis and bidi leaves by rail out of Bhandara district.
By the Government of India Act, 1935, terminal tax was included in the Federal Legislative List but section 143 (2) of the Act provided that such a tax which was being lawfully levied under a law in force on January 1, 1935, may continue to be levied until provision to the contrary was made by the Federal Legislature.
The District Council continued to leavy and collect the tax.
In 1948 the C P. and Berar Local Government Act, 1948, came into force which repealed the 1920 Act.
It replaced the District Council, Bhandara, with three janapada Sabhas.
Clause (c) ;of the proviso to the saving section section 192 provided that 'all rates, taxes and cesses due to the District Council shall be deemed to be due to the Sabha to whose area they pertained, 71 By an amending Act of 1949 the Provincial Legislature replaced cl.
(b) of the proviso to section 192 by a new cl.
(b) which, inter alia, continued in force all taxes which were in force immediately before the commencement of the 1948 Act, this amendment was given retrospective effect from the commencement of 1948 Act.
The appellant contended that the 1948 Act which repealed the 1926 Act did not save the terminal tax, and once the tax was discontinued the Provincial Legislature had no power left to impose it afresh and that the amendment was accordingly beyond its legislative competence_.
The respondent contended that section 143 (2) of the Government of India Act, 1935.
vested in the Provincial Legislature plenary power to legislate in respect of every tax which was being lawfully levied in the province, that cl.
(c) of the proviso to section 192 of the 1948 Act saved the tax and that the amendment was validly made and it saved the tax with retrospective effect from the date of the repeal of the 1920 Act.
Held, that the terminal tax was validly continued by the retrospective amendment of cl.
(b) to the proviso of section 192 of 1948 Act.
Section 143 (2) of the Government of India Act, 1935, did not confer upon the Provincial Legislature any plenary power of legislation in respect of taxes which were being validly imposed.
But it did confer upon the Provincial Legislature a limited legislative power to enact a law with reference to the tax levy so as to continue it.
The power of the Provincial Legislature to repeal the 1920 Act which imposed the tax was co extensive with its power to enact such a law.
In exercise of this limited legislative power the Provincial Legislature was competent to enact the Amending Act of 1949.
Attorney General for Ontario vs Attorney General for the Dominion, , referred to.
Clause (c) of the proviso to section 192 of the 1948 Act did not save the future imposition of the tax; it merely provided for the collection of taxes already accrued in favour of the District Councils by the successor Sabhas.
The words in this clause "due to the District Council" referred only to taxes which had accrued on the date of the repeal of the 1920 Act and did not include taxes which accrued later and became payable subsequent to that date.
The subsequent amendment of 1949 could not be take a into account in construing cl.
(c) and for determining the intention of the legislature.


judgement:
Appeal No. 581 of 60.
Appeal from the judgment and decree dated April 23.
1958, of the Punjab High Court (Circuit Bench) Delhi in Civil Regular First Appeal No. 32 D of 1953.
Naunit Lal and D. Gupta, for the appellant, 703 Gurbachan Singh and Harbans Singh, for the respondent.
May 1.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This, appeal, on certificate granted by the Punjab High Court, arises in the following circumstances.
M/s. Radha Ram Sohan Lal of Calcutta consigned certain goods to self at Delhi.
of the consignment, certain articles were not delivered to M/s. Udho Ram & Sons, the plaintiffs, in whose favour the railway receipt had been endorsed by the consigner.
Having failed to receive the compensation for the loss suffered on account of the articles not delivered, the suit giving rise to this appeal was instituted.
There is now no dispute ' about the amount of loss, determined by the Court, as suffered by the plaintiffs.
The only dispute between the parties is whether the loss of goods in transit between Calcutta and Delhi was due to the misconduct and negligence of the railways or not.
The Union of India, the dependent, contended that the loss occurred due to circumstances beyond the control of the railway administration.
The trial Court found that the railway wagon in which the consignment was loaded bad been thereafter properly riveted and sealed at Howrah, that the seals and rivet of one door of the wagon were found open when the train which left Howrah at 1.
30 a. m. on October 1, 1949, reached Chandanpur Station at 3.15 a. m., the same night, the train having stopped for 14 minutes at the Howrah Burdwan Link for the home signal at 2.
05 a. m., and that the railway protection police escorted the train.
The High Court accepted these findings and they are not questioned.
704 The trial Court, however, found that the precaution taken of posting railway protection police in a good,; train, in view of the frequent thefts in running trains between Howrah and Chandanpur, amounted to the railways taking proper care of the goods delivered to them as carriers and that therefore the railways were not guilty of any negligence and misconduct.
It was of the view that the railway protection police which usually traveled in the guard 's van, could not possibly know what was happening in the wagons at the other and or in the middle of the train during the journey.
It therefore dismissed the suit.
On appeal, the High Court held the railways responsible for the loss which, in its view, was due to its negligence and misconduct inasmuch as there was no evidence on record that the railway protection police took any precautions to see that nobody interfered with the train when it halted for 15 minutes at the Howrah Burdwan Link at night.
There was no other arrangement for watch and ward at the Link.
There was no evidence as to what was the strength of the railway protection ,police or to show that it did stir out of the train see that the wagons were not interfered with.
It therefore concluded that the servants of the railway were negligent and did nothing to see that opportunities for theft were eliminated as far as possible, that the railway administration was responsible for the negligence of its employees as it could act through its employees and that therefore the lose of goods was due to the misconduct and negligence of the railways.
It therefore reversed the decree of the trial court and decreed the plaintiffs ' suit for the amount of loss hold suffered by the plaintiffs.
It is this decree against which the Union of India has obtained the certificate of fitness for appeal from the Punjab High Court and has preferred this appeal.
705 There is no evidence on record that the railway protection police which escorted the train was adequate in strength for the purpose of seeing that the goods were not interfered with in transit.
In fact, the defendants did not allege in their written statement that any railway protection police escorted the train.
The present of the railway protection police with the train was just deposed to by Chatterjee, D. W, 10, the then Assistant Station Master at Chandanpur Railway Station.
He did not mention that fact in any of his messages or memorandum in which he simply mentioned the presence of the railway protection police at the time of re sealing the wagon.
He stated in cross examination that he did not remember from memory the events of the occurrence at Chandanpur station on October 1, 1949, and was making his statement on the basis of the record before him.
However, both the Courts below have recorded the finding that railway protection police did escort the train.
There is no evidence as to why the police force could not see to the non interference with the wagons when the train halted at the Link where, according to the Courts below, the thieves probably get at the wagon and tampered with its seal and rivets.
In the absence of any evidence about the strength of the railway protection police, the contention of the appellant that the force was adequate cannot be accepted.
It may be true that any precautions taken may not be always successful against the loss in transit on account of theft,, but in the present case there is no evidence with respect to the extent of the precautions taken and with respect to what the railway protection police itself did at the place where the train had to stop.
We cannot accept the contention that the railway protection police could not have moved out of the guard 's van due to the uncertainly of the stoppage of the train at the 706 signal.
It was the job of its members to get down on every stoppage of the train and to keep an eye at the various wagons, as best as they could.
There could be no risk of the train leaving them on the spot suddenly.
They could climb up when the train was to move.
The wagon in which the plaintiffs ' goods were, was in the centre of the train.
It was the 29th marriage from the other end.
It must be taken to be the duty of railway protection police to get out of the guard 's van whenever the train stops, be it at the railway platform or at any other place.
In fact, the necessity to get down and watch the train when it stops at a place other than a station is greater than when the train stops at a Station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to temper with any wagon and any tempering to be done at a station is likely to be on the off side.
The responsibility of the railways under section 72 of the Indian Railways Act is subject to the provisions of section 151 of the Indian Contract Act.
Section 151 states that in all cases of bailment, the bailer is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstance, take of his own goods of the same bulk, quality and value as the goods bailed.
Needless to say that an ordinary person traveling in a train would be particular is keeping an eye on his goods especially when the train stops.
It is not therefore imposing a higaher standard of care on the railway administration when it is said that its staff, and especially the railway protection police specially deputed for the purpose of seeing that no loss takes place to the goods, should get down from the wagon and keep an eye on the wagons in the train in order to see that no unauthorised person gets at the goods.
707 We are therefore of opinion that the finding of the High Court that the loss took place due to the negligence of the railway servants and, consequently, of the railway administration, is justified.
We therefore dismiss the appeal with costs.
Appeal dismissed.

summary/full:
Certain goods consigned by a merchant to the respondent.
Some of the goods were lost in transit.
The respondent sued the railway authorities for damages for the loss on ground that the loss 'Was incurred due to the negligence of the railway authorities.
The defence raised was that loss occurred due to factors beyond the control of the railway authorities.
The suit was dismissed by the trial court.
On appeal the High Court reversed the judgment of the trial court and found that the loss was caused by the negligence and misconduct of the railway authorities in as much as the railway police failed to take precaution to see that no body interfered with the goods.
The Union of India appealed to the Supreme Court by way of certificate granted by the High Court.
Held, that the responsibility of the railway under section 72 of the Indian Railways Act is subject to the provisions of section 151 of the Indian Contract Act and the Railway as a bailer was bound to take as much care of the goods bailed to it as a man of ordinary prudence would under similar circumstances.
The loss having taken place due to the negligence of the railway servants the railway is liable for the loss incurred by the respondent.