judgement:
Civil Appeal Nos.
145 146/ 1972.
(Appeals by Special Leave from the Judgment and Order dated 9 12 1970 of the Mysore High Court in Writ Petitions Nos.
2042 and 2065/70).
Narayan Nettar, for the appellant.
R.M. Mehta, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
These two appeals by special leave are against the common judgment of the Mysore High Court whereby the High Court in two petitions under article 226 of the Constitution of India quashed two orders made by the Deputy Commissioner of Commercial Taxes appellant under section 21 of the Mysore Sales Tax Act, 1957 (hereinafter referred to as the Act).
The respondent is an excise contractor.
He was as sessed under the Act for the assessment years 1959 60 and 1960 61 as per orders dated March 21, 1963 made by the Commercial Tax Officer Raichur.
Under those orders the taxable turnover of the respondent for the two years in question was determined after deducting the shop rent and the tree tax.
For the assessment year 1959 60, a sum of Rs. 2,10,542 was deducted and the net taxable turnover was determined to be Rs. 25,989.
For the year 1960 61 a sum of Rs. 3,98,350 was deducted and the net taxable turnover was determined to be Rs. 26,657.
The Commercial Tax Officer initiated proceedings under section 12A of the Act in respect of the aforesaid years because he was of the view that some items of turnover had escaped assessment.
As per orders dated June 8, 1966 he made assessment by including in the turnover of the respond ent certain amounts which had escaped assessment under the original assessment orders dated March 21, 1963.
The deduc tion in respect of shop rent and tree tax was, however, allowed to the respondent in orders dated June 8, 1966 as it had been allowed in initial orders dated March 21, 1963.
On June 28, 1967 the appellant, i.e., the Deputy Commis sioner of Commercial Taxes, made two orders revising the orders dated June 8, 1966.
In the said orders the appel lant disallowed the deduction which had been allowed to the respondent in respect of the shop rent.
The appellant in those orders referred to the decision of this Court in Shinde Brother etc.
vs Deputy Commissioner Raichur(1) and held that the amount of shop rent being not excise duty should not be deducted in computing the turnover of the respondent for the two years in question.
The taxable turn over of the respondent for the two years in question was accordingly enhanced.
(1) 595 The respondent made two applications for rectification of the orders of the appellant dated June 28, 1967.
It was urged on behalf of the respondent that the revision of assessments was barred by limitation under section 21(3) of the Act and as such there was a mistake apparent on the record.
The appellant rejected those applications.
The respondent then preferred two appeals to the Sales Tax Appellate Tribunal.
The Tribunal too rejected those ap peals on the ground that they were not maintainable.
The respondent thereafter filed two petitions in the High Court under article 226 for the issuance of writs in the nature of certiorari for quashing the orders dated June 28, 1967.
The High Court, as already mentioned, allowed both the peti tions and quashed orders dated June 28, 1967.
In the opinion of the High Court, orders dated June 28, 1967 made by the appellant were without jurisdiction since they had been made beyond the period of four years from the date of the assessment orders dated March 21, 1963.
Mr. Narayan Nettar, learned counsel for the appellant has contended in appeal before us that the period of four years mentioned in section 21 (3) of the Act should be computed from the orders dated June 8, 1966 made under section 12A of the Act and not from the initial orders of assessment dated March 21, 1963.
The above stand has been controverted by Mr. Mehta, who argued the case amicus curiae as no one appeared on behalf of the respondent.
After giving the matter our consideration, we are of the view that the contention advanced on behalf of the appel lant is well founded.
Before, however, dealing with the matter, we consider it appropriate to reproduce the relevant provisions of the Act.
Section 12A of the Act relates to assessement of escaped turnover.
Sub section (1) of that section at the relevant time read as under: "(1) Where for any reason the whole or any part of the turnover of a dealer has escaped assessment to tax or licence fee or has been assessed at a lower rate than the rate at which it is assessable, the assessing authority may, subject to the provisions of sub section (2), at any time within a period of five years from the expiry of the year to which the tax or licence fee relates, assess to the best of its judgment, the tax or li cence fee payable on the turnover referred to after issuing a notice to the dealer and after making such enquiry as it considers necessary.
" Section 21 of the Act deals, inter alia, with revisional powers of the Deputy Commis sioner.
Sub section (2) and (3) of that section read as under: "(2) The Deputy Commissioner may of his own motion call for and examine the record of any order passed or proceeding recorded under the provisions of this Act by a Commercial Tax Officer subordinate to him and against which no appeal has been preferred to him under section 20, for the purpose of satisfying himself as to the legality or propriety of such order or as to the regularity of such proceeding and pass such order with respect thereto as he thinks fit.
4 112SCI/76 596 (3) In relation to an order of assessment passed under this Act, the power under sub sections (1) and (2) shall be exercisable only within a period of four years from the date on which the order was passed.
" The short question which arises for determination in these appeals is that in the event of an order having been made under section 12A of the Act, what is the starting point for computing the period of four years, mentioned in section 21 (3), for the exercise of the powers under section 21(2).
Is it the initial assessment order or is it the order made under section 12A ? In the context of the present case, the question to be answered is as to whether the period of four years is to be calculated from March 21, 1963 when the initial assessment orders were made, or from June 8, 1966 when the orders under section 12A of the Act were made.
So far as this question is concerned, we are of the opinion that the period of four years should be calcu lated from June 8, 1966, i.e., the date on which orders under section 12A of the Act were made.
The reason for that is that once an assessment is reopened, the initial order for assessment ceases to be operative.
The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment.
The initial order for reassessment cannot be said to survive, even partially, although the justification for reassessment arises because of turnover escaping assessment in a limited field or only with respect to a part of the matter covered by the initial assessment order.
The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment.
As it is we find that in the present case the assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier.
In the circumstances, the only orders which could be the subject matter of revision by the appellant were the orders made under section 12A of the Act and not the initial assessment orders.
In the case of V. Jagannathan Rao & ors.
vs Commission er of Income tax and Exrcess Profits Tax, Andhra Pradesh (1) this Court dealt with section 34 of the Indian Income tax Act, 1922 which relates to reassessment in the case of income escaping assessment.
It was held by this Court that once assessment is reopened the previous under assessment is set aside and the whole proceedings star afresh.
Ramaswami J. speaking for the Court observed: "Section 34 in terms states that once the Income tax Officer decides to reopen the assessment he could do so within the period prescribed by serving on the person liable to pay tax a notice containing all or any of the requirements which may be included in a notice under section 22(2) and may proceed to assess or reassess such income, profits or gains.
It is, therefore, manifest that once assess ment is (1) ITR 373.
597 reopened by issuing a notice under sub section (2) of section 22 the previous under assess ment is set aside and the whole assessment proceedings start afresh.
When once valid proceedings are started under section 34(1)(b) the Incometax Officer had not only the juris diction but it was his duty to levy tax on the entire income that had escaped assessment during that year.
" In the case of Commissioner of Sales Tax, Madhya Pradesh vs H.M. Esufali H.M. Abdulali(1) this Court dealt with reassessment made under section 19 of the Madhya Pradesh General Sales Tax Act, 1958.
It was held that when reas sessment is made, the former assessment is completely reo pened and in its place fresh assessment is made.
Hegde J. speaking for the Court observed: "What is true of the assessment must also be true of reassessment because reas sessment is nothing but a fresh assessment.
When reassessment is made under section 19, the former assessment is completely reopened and in its place fresh assessment is made.
While reassessing a dealer, the assessing authority does not merely assess him on the escaped turnover but it assesses him on his total estimated turnover.
While making assessment under section 119, if the assessing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment is to refuse to file a return or refuse to produce his account books.
If contention taken on behalf of the assessee is correct, the assessee can escape his li ability to be reassessed by adopting an obstructive attitude.
It is difficult to conceive that such could be the position in law." In International Cotton Corpn.
(P) Ltd. vs Commercial Tax Officer, HubIi & Ors.
(2) this Court held that once can assessment order had been rectified and it was sought to make a further rectification of that order, the period of limitation for making such further rectification would commence not from the date of the original assessment order but from the date of the earlier rectification order.
Alagi riswami J. speaking for the Court in this context observed: "The other attack that the rectification order is beyond the point of time provided in Rule 38 of the Mysore Sales Tax Rules is also without substance.
What was sought to be rectified was the assessment order rectified as a consequence of this Court 's decision in Yaddalam 's case.
After such rectification the original assessment order was no longer in force and that was not the order sought to be rectified.
It is admitted that all the rectification orders would be within time calculated from the original rectification order.
Rule 38 itself speaks of 'any order ' and there is no doubt that the rectified order is also 'any order ' which can be rectified under Rule 38." ; I.T.R. 271.
(2) [1975] 2 S.C.R. 345.
598 Although the above case related to an order which had been subsequently rectified, the principle laid down therein would, in our opinion, be also applicable in cases where reassessment is made on the ground that certain amounts of turnover had escaped assessment.
Before we conclude, we may observe that according to section 33B of the Indian Income tax Act, 1922 the Commis sioner cannot revise an order of reassessment made under the provisions of section 34 of the Act.
Likewise, sub section (2) of section 263 of the Incometax Act, 1961 expressly prohibits the revision by the Commissioner of Income tax of an order of reassessment made under section 147 of Act.
No such prohibition in the provisions of the Act with that Act.
Nosuch prohibition brought to our notice.
which we are concerned has, however, been brought to our notice.
We would, therefore, accept the appeals, set aside the judgment of the High Court and dismiss the petitions under article 226 filed by the respondent.
Looking to all the facts, we leave the parties to bear their own costs in this Court as well as in the High Court.

summary/full:
In respect of the assessment years 1959 60 and 1960 61, fresh assessments were made under section 12A of the Mysore General Sales Tax Act 1957 by the , Commercial Tax Offi cer.
By his order dated June 8, 1966, certain amounts which had escaped assessment under the original assessment orders dated March 21, 1963 were included in the turnover of the respondent, but the deductions in respect of shop rent and tree tax were, however, allowed as in the initial orders.
The appellant, in exercise of the powers under section 21(2) of the Act, by his orders dated June 28, 1967 revised the orders dated June 8, 1966 disallowing the deductions in respect of the shop rent, following the decision of this Court in Shinde Brother etc.
vs Deputy Commissioner Raichur Two rectification applications and the two appeals therefrom on the ground that the revisions of assessment were barred by limitation under section 21(3) of the Act and, as such, there was a mistake apparent on the record were rejected as not maintainable.
However, the writ petitions filed were allowed by the High Court holding that the orders dated June 28, 1967 were without jurisdic tion since they had been made beyond the period of four years from the date of the initial assessment orders dated March 21, 1963.
On appeals by special leave to this Court, HELD: The contention advanced on behalf of the appel lants that the period of four years mentioned in section 21(3) of the Act should be computed from the orders dated June 8, 1966 made under S 12A of the Act and not from the ini tial orders of assessment dated March 21, 1963 is well founded.
[595 C D] Once an assessment is reopened the initial order for as sessment ceases to be operative.
The effect of reopening the assessment is to vacate or set aside the initial order for assessment and to substitute in its place the order made on reassessment.
The initial order for reassessment cannot be said to survive even partially although the justification for dessessment arises because of turnover escaping assess ment in a limited field or only with respect to a part of the matter covered by the initial assessment order.
The result of reopening the assessment is that a fresh order for reassessment would have to be made including for those matters in respect of which there is no allegation of the turnover escaping assessment.
[596 D E] In the present case the assessment orders made under section 12A were comprehensive orders and were not confined merely to matters which had escaped assessment earlier and the only orders which could be the subject matter of revision by the appellant were the orders made under section 12A of the Act and not the initial assessment orders.
[596 E F] J. Jaganmohan Rao & Ors.
vs Commissioner of Income tax and Excess Profits Tax, Andhra Pradesh [1970] 1 S.C.R. 726=75 ITR 373; Commissioner of Sales Tax, Madhya Pradesh vs
H.M. Esufali H.M. Abdulali ITR 271, followed.
International Cotton Corporation (P) Ltd. vs Commercial Tax Officer, HubIi & Ors.
[1975] 2 S.C.R. 345, applied.


judgement:
Appeal No. 873 of 1975. (From the Judgment and Order dated 11 11 1974 of the Allahabad.
High Court in Civil Misc.
Writ Petition No. 6976/74) AND Civil Appeal No. 1748 of 1975.
(Appeal by Special Leave from the Judgment and Order dated ' 8 11 1974 of the Allahabad High Court in Civil Misc.
Writ Petition No. 6932/74).
AND Civil Appeal No. 1425 of 1974.
(From the Judgment and Order dated 1 9 1972 of the Allahabad.
High Court in Special Appeal No. 8/66).
A.N. Parekh, for the appellants in CA 1748/75.
Yogeshwar Prasad, for the appellants in CA 873/75.
D.N. Misra for the appellant in CA 1425/74.
L.N. Sinha, Solicitor General, S.N. Prasad (In CA 873/75) and Girish Chandra, for the respondents iii all the appeals.
The Judgment of the Court was delivered by RAY, C.J.
Civil Appeals Nos. 873 and 1425 are by cer tificate under Article 133(1) of the Constitution of India and Civil Appeal No. 1748 is by special leave.
605 (Ray, C.J.) These appeals turn on the question whether the Commis sion described as the Forward Market Commission under the Forward Contract (Regulation) Act, 1952, can impose condi tions under section 14 A and Section 14 B on the commodities in respect of which business can be carried on by persons who apply for registration.
This Court in Union of India & Anr.
vs M/s. Rajdhani Grains and Jaggery Exchange Ltd. & Ors.
(1975 Supp.
S.C.R.1) dealt with this specific question and came to the conclusion that the specification of the commodities in respect of which the business can be carried on is a condition con cerned with the regulation and control of the business relating to forward contracts.
It is idle to suggest that the Commission in granting certificate of registration to carry on business will not be competent to specify the commodities in which the persons asking for registration will deal.
Another contention was raised before us that the provi sions contained in Section 4 of the Forward Contract (Regu lation) Act 1952 do not confer power on the Commission to impose conditions.
This contention is also repelled by the decision of this Court to which reference has already been made.
It has been held in that case that the Commission alone is vested with power to impose conditions in regard to commodities in respect of which forward contracts can be entered into by a particular association.
Sections 15 to 18 of the Act do not clash with the power of the Commission to impose conditions in respect of commodities in which busi ness of forward contract can be carried on.
Another contention was advanced before us that with regard to the recognised associations the Commission had no power to impose conditions with regard to commodities in which they deal.
This contention is also answered by the decision of this Court (supra).
Further the provisions contained in Chapter III A specifically deal with registra tion of all associations concerned with regulation and control of forward contracts and the power of the Commis sion to grant or refuse such certificate of registration.
All contentions advanced by the appellants are already answered ' by the decision of this Court (supra) and the observations made herein.
The appeals are therefore dis missed.
There will be no order as to costs.
P.H.P. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The appellants contended that the Forward Market Commis sion under the Forward Contract (Regulation) Act 1952 cannot impose conditions under sections 14A and 14B on the commodities in respect of which business can be carried out by persons who apply for registration.
Secondly, the provisions.
contained in section 4 of the Act do not confer power on the Commission to impose conditions.
Thirdly, in respect of recognised associations, the Commission had no power to impose conditions with regard to commodities in which they deal.
Dismissing the appeal, HELD: All the 3 conditions raised in the present appeal are covered against the appellant by the decision of this Court in the case of Union India vs M/s Rajdhani Grain and Jaggery Exchange Ltd. reported in [1975], Supp, SCR 1.
[605 B F]


judgement:
Civil Appeals Nos.
1912 1914 of 1976.
(Appeal by special Leave from the Judgment and order dated 7 2 1975 of the Madhya Pradesh High Court in Misc.
Petition No. 231/74 and 685 and 732/73 respectively.) I.N. Shroff and H.S. Parihar, for the appellants.
S.K. Gambhir, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
In this appeal by special leave, on an application filed by the respondents before the High Court of Madhya Pradesh, the High Court struck down the constitu tional validity of sub section
(5) (a) of section 37 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 hereinafter referred to as 'the Act ' (No.
24 of 1973).
The impugned sub section runs as follows: "(5) Every commission agent shall be liable (a) to keep the goods of his principal in safe custody without any charge other than the commission payable to him; and" 620 The High Court thought that this statutory provision places unreasonable restriction on the commission agent and puts great burden on him for storing the goods given to him by the principal without charging the commission for its safe custody.
The Act is a social piece Of legislation and should have been liberally construed so as to advance the object of the Act and fulfil the aims to be achieved there by.
The main purpose of the Act is to secure a scientific method of storage, sale, distribution and marketing of agricultural produce and cut out as far as possible middle man 's profit.
The Act, therefore, contains provisions of a beneficial nature preventing profiteering tendencies.
It is not, however, the hardship that can be termed unreasonable so as to make a statute unconstitutional.
Moreover, the High Court does not appear to have looked to.
the scheme of the Act and has in fact completely overlooked the provisions of section 37(4) which runs as follows: "(4) The commission agent shall recover his commission only from his principal trader at such rates as may be specified in the bye laws including all such expenses as may be incurred by him in storage of the produce and other services rendered by him." This section clearly empowers the commission agent to charge such rates as may be specified by the bye laws even for the storage of the Produce and other services rendered by him.
This provision also does not prevent the commission agent from levying reasonable charges for the storage over and above his commission.
All that the Act prevents is that the commission agent is prohibited from levying any charges for safe custody from the farmer or the principal.
This is done in order to attract and lure the farmers to place their goods with commission agents without additional payment of charges for safe custody.
Section 37 (4), however, compen sates the commission agent by authorising him to charge his commission and all expenses which may be incurred by the commission agent in connection with the storage of the produce and the services rendered by him.
This section, therefore, clearly authorises the commission agent not only to charge his commission from the principal trader but also expenses incurred by him for the purpose of the storage.
That apart section 2(e) of the Act whiCh defines a "Commission agent" empowers him to charge any commission o.r percentage upon the amount involved in such transaction.
For these reasons, therefore, we do not see any hardship or unreasonableness in the provisions Of section 37(5)(a) of the Act.
The High Court, therefore, committed an error of law in striking down this provision as unconstitutional.
In our opinion, therefore, section 37 (5) (a) of the Act is constitu tionally valid.
In the view we take, it is not necessary to go into the question whether the law violates article 19 of the Constitution which stands suspended during the emergen cy.
The appeal is accordingly allowed.
The order of the High Court is quashed.
In the circumstances, there will be no order as to.
costs.
M.R. Appeal al lowed.

summary/full:
The respondents challenged the constitutional validity of section 37(5)(a) of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972, before the High Court on the ground that it places unreasonable restriction on the commission agent and puts a great burden on him for storing the goods given to him by his principal, without charging the commission for its safe custody.
The plea was accepted and the High Court struck down the impugned provision as unconstitutional.
Allowing the appeal by Special Leave, the Court, HELD: Section 37(5)(a) is constitutionally valid and there is no hardship or unreasonableness in it.
The provi sion prevents the commission agent from levying any addi tional charges from the farmer or the principal for safe custody of the goods.
but section 37(4) of the Act compensates him by authorising him to charge not only his commission from the, principal trader, but also the expenses incurred by him for the purpose of storing the produce, and the services rendered by him.
[620 D, E, G]


judgement:
Appeal Nos.
& 1511 of 1974.
(Appeals by certificate./Special Leave from the Judg ment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Misc.
Petition No. 136/73).
Criminal Appeal No. 255 of 1974.
(From the Judgment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Criminal Revision No. 159/71) and Civil Appeal NOs.
344 346 of 1976.
(Appeals by Special Leave from the Judgment and.
Order dated 24 10 1972 of the Orissa High Court in C.J.C. 185, 186 and 217 of 1969).
Frank Anthony, in CA 1489, CrI. A. 255/74 and CA 346/76 for the appellant in CAs 1489 and 1511/74 and Crl.
A. No. 255/74 and RR. 1 and 2 in CAs 346/76.
Soli J. Sorabiee in CA 1511, Crl.
A. 255/74 1.
B. Dadac hanji, K. J. John O.C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl.
A. No. 255/74 and RR. 1 and 2 in CAs 346/76.
Gobind Das (In CAs 344 346/76) B. Parthasarthi, for the appellants in CAs 344 346/76.
Soli J. Sorabjee, B.P. Maheshwari and Suresh Sethi, for R. 3 in CA 346/76.
Brijbans Kishore, B.R. Sabharwal, for RR.
in CA 345/76.
Gobind Das,Raj Kumar Mehta,for the Intervener (State of Orissa) in C.A. 1489/74.
The Judgment of the Court was delivered by RAY, C.J.
These appeals were heard together because they raise common questions of law relating to the interpre tation of the Constitution.
Civil Appeals No. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 are directed against a judgment of the Madhya Pradesh High Court dated 23 April, 1974.
We shall refer to these as the Madhya Pradesh cases.
Civil Appeals No. 344 346 of 1976 relate to a judgment.
of the orissa High Court dated 24 October, 1972.
We shall refer to these appeals as the Orissa cases.
613 The controversy in the Madhya Pradesh cases relates to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, hereinafter referred to as the Madhya Pradesh Act.
The controversy in the Orissa cases arises out of the Orissa Freedom of Religion Act, 1967 hereinafter referred to as the Orissa Act.
The provisions of the 'two Acts in so far as they relate to.
prohibition of forcible conversion and punishment there for, are similar and the questions which have been raised before us are common to both of them.
It will, therefore, be enough, for the purpose of appreciating the controversy, to make a somewhat detailed mention of the facts of the Madhya Pradesh case.
The Sub Divisional Magistrate of Baloda Bazar sanctioned the prosecution of Rev. Stainislaus for the commission of offences under sections 3, 4 and 5(2) of the Madhya Pradesh Act.
When the case came up before Magistrate, First Class, Baloda Bazar, the appellant Rev. Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act was ultra vires the Constitution as it did not fall within the purview of Entry I of List II and Entry I of List III of the Seventh Schedule.
The appellant 's conten tion was that it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature.
An objection was also raised that the provisions of sections 3, 4 and 5(2) of the Act contra vened Article 25 of the Constitution and were void.
The Magistrate took the view that there was no force in the. objection and did not refer the case to the High Court under section 432 of the Code of Criminal Procedure, 1898.
The appellant applied to the Additional Sessions Judge for a revision of the Magistrate 's order refusing to make a reference to the High Court.
The Additional Sessions Judge also took the view that no question of constitutional impor tance arose in the case and he did not think it necessary to make a reference to the High Court.
The appellant thereupon applied to the High Court for revision under section 439 of the Code of Criminal Procedure and he also filed a petition under Articles 226 and 227 of the Constitution.
The High Court heard both the revision and the writ petition together.
The appellant raised the following three questions in the High Court : (i) that sections 3, 4, 5(2) and 6 of the M.P. Dharma Swatantraya Adhiniyam, 1968 are viola tive of the petitioner 's fundamental rights guaranteed by Article 25 ( 1 ) of the Consti tution of India; (ii) that in exercise of powers conferred by Entry No. 1 of List II, read with Entry No. 1 of List III of the Seventh Schedule the Madhya Pradesh Legislature in the name of public order could not have enacted 614 the said legislation.
But the matter would fail within the scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary powers on Parliament to legislate in respect of any matters not covered by List I, List I1 or List III.
Therefore, it is contended that Parliament alone had the power to legislate on this subject and the legisla tion enacted by the State Legislature is ultra vires the powers of the State legislature; (iii) that section 5(1) and section 5(2) of the M.P. Dharma Swatantraya Adhiniyam, 1968 amount to testimonial compulsion and, therefore, the said provisions are violative of Article 20(3) of the Constitution of India.
The High Court examined the controversy with reference to the relevant provisions of the Madhya Pradesh Act and the Madhya Pradesh Dharma Swatantraya Rules, 1969 and held as follows : "What is penalised is conversion by force, fraud or by allurement.
The other element is that.
every person has a right to profess his own religion and to act according to it.
Any interference with that right of the other person by resorting to conversion by force, fraud or allurement cannot, in our opinion, be said to contravene Article 25(1) of the Con stitution of India, as the Article g uarantees religious freedom subject to public health.
As such, we do not find that the provisions of sections 3, 4 and 5 of the M.P. Dharma Swatantraya Adhiniyam, 1968 are violative of Article 25(1) of the Constitution of India.
On the other hand, it guarantees that religious freedom to one and all includ ing those who might be amenable to conversion by force, fraud or allurement.
As such, the Act, in our opinion, guarantees equality of religious freedom to all, much less can it be said to encroach upon the religious freedom of any particular individual.
" The High Court therefore held that there was no justi fication for the argument that sections 3, 4 and 5 of the Madhya Pradesh Act were violative of Article 25(1) of the Constitution.
The High Court in fact went on to hold that those sections "establish the equality of religious freedom for all citizens by prohibiting conversion by objec tionable activities such, as conversion by force, fraud and by allurement".
As regards the question of legislative competence, the High Court took note of some judgments of this Court and held that as "the phrase 'public order ' conveys a wider connotation as laid down by their Lordships! of the Supreme Court in the different cases.
We are of the opinion that the subject matter of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 fails within the scope of Entry No. I of List II of the Seventh Schedule relating to the State List regarding public order".
615 On the remaining point relating to testimonial compul sion with reference to Article 20(3)of the Constitution, the High Court held that section 5 of the Madhya Pradesh Act read with Form A, prescribed by the Rules, merely made provision for the giving of intimation to the District Magistrate about conversion and did not require its maker to make a confession of any offence as to whether the conver sion had been made on account of fraud, force or allurement, 'which had been penalised by the Act.
The High Court thus held that mere giving of such information was not violative of Article 30(1) of 'the Constitution.
But the question of testimonial compulsion within the meaning of Article 20(3) of the Constitution has not been raised for our considera tion.
The Orissa cases arose out of petitions under Article 226 of the Constitution challenging the vires of the Orissa Act.
The High ,Court stated its conclusions in those cases as follows: (1) Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion.
(2) Prohibition of conversion by 'force ' or by 'fraud ' as defined by the Act would be covered by the limitation subject to which the right is guaranteed under Article 25 (1).
(3) The definition of the term 'inducement ' is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25 (1) cannot be said to cover the wide definition. ' (4) The State LegisLature has no power to enact the impugned legislation which in pith and substance is a law relating to religion.
Entry No. 1 of either List II or List III does not authorise the impugned legislation.
(5) Entry 97 of List I applies.
The High Court has therefore declared the Orissa Act to be ultra vires the Constitution and directed the issue of mandamus to the State Government not to give effect to it.
The criminal cases which were pending have been quashed.
The common questions which, have been raised for our consideration are (1) whether the two Acts were violative of the fundamental right guaranteed under Article 25(1) of the Constitution, and (2) whether the State Legislatures were competent to enact them ? Article 25(1) of the Constitution reads as follows: "25(1) Subject to public order, ' morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
" 616 Counsel for the appellant has argued that the right to 'propagate ' one 's religion means the right to convert a person to one 's own religion.
On that basis, counsel has argued further that the right to convert a person to one 's own religion is a fundamental right guaranteed by Article 25 (1) of the Constitu tion.
The expression 'propagate ' has a number of meanings, including "to multiply specimens of (a plant, animal, disease etc.) by any process of natural reproduction from the parent stock", but that cannot, for obvious reasons, be the meaning for purposes of Arti cle 25 (1) of the Constitution.
The Article guarantees a right to freedom of religion, and the expression 'propagate ' cannot there fore be said to have been used in a biologi cal sense.
The expression 'propagate ' has been de fined in the Shorter Oxford Dictionary to mean "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)" According to the Century Dictionary (which is an Encylopaedic Lexicon of the English Language) Vol.
VI, 'propagate ' means as follows : "To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as propagate a report; to propagate the Christian religion".
We have no doubt that it is in this sense.
that the word 'propagate ' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one 's own religion, but to transmit or spread one 's religion by an exposition of its tenets.
It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the follow ers of one particular religion, and that, in turn, postu lates that there is no fundamental right to convert another person to one 's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the coun try alike.
The meaning of guarantee under Article 25 of the Con stitution came up for consideration in this Court in Ratilal Panachand Gandhi vs The State of Bombay & Ors.
(1) and it was held as follows : "Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such, religious belief as may be approved of by his judgment or con science but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." (1) [1954]S.C.R. 1055.
617 This Court has given the correct meaning of the Article, and we find no justification for the view that it grants.
a fundamental right to convert persons to one 's own reli gion.
It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons follow ing the other religions.
What is freedom for one, is free dom for the other, in equal measure, and there can there fore be no such thing as a fundamental right to convert any person to one 's own religion.
It was next been argued by counsel that the Legislatures of Madhya Pradesh, and Orissa States did not have legisla tive competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'rel igion ' and fall under the Residuary Entry 97 in List 1 of the Seventh Schedule to the Constitution.
It is not in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to.
another by use of force or allurement, or by fraudulent means, and matters incidental thereto.
The expressions "allurement" and 'fraud ' have been defined by the.
Section 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and section 4 pena lises such forcible conversion.
Similarly, section 3 of the Orissa Act prohibits forcible conversion by the use of force or by inducement or by any.
fraudulent means, and section 4 penalises such forcible conversion.
The Acts therefore dearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States.
The expression "Public order" is of wide conno tation.
It must have the connotation which it is meant to provide as the very first Entry in List II.
It has been held by this Court in Ramesh Thapper vs The State of Madras(1) that "public order" is an expression of wide connotation and signifies state of tranquility which pre vails among the members of a political society as a result of internal regulations enforced by the Government which they have established".
Reference may also be made to the decision in Ramjilal Modi vs State of U.P. (2) where this Court has held that the right of freedom religion guaranteed by Articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that "it cannot be predicat ed that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order".
It has been held that these two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.
Refer ence may as well be made to the decision in Arun Ghosh vs State of WeSt Bengal(a) where it has been held that if a thing disturbs the current of the life of the community, (1) ; (2) ; (3) ; 618 and does not merely affect an individual, it would amount to disturbance of the public order.
Thus if an attempt is made to raise communal passions, e.g. on the ground that some one has been "forcibly" converted to anoth er religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large.
The impugned Acts therefore fall within: the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.
The two Acts do not provide for the regulation of religion and! we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.
In the result Civil Appeals No. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 fall and are dismissed while Civil Appeals No. 344 346 of 1976 are allowed and the impugned judgment of the Orissa High Court dated 24 October, 1972 is set aside.
The parties shall pay and bear their own costs, in Madhya Pradesh appeals.
The State shall pay the respondent costs in the Orissa appeal according to previous direction.
P.H.P. C.As.
1489 & 1511 of 1974 and Cr.
A. No. 255 of 1974 dismissed.
344 346 of 1976 allowed.

summary/full:
The constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, was challenged in the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967 was challenged in the High Court of Orissa.
The two Acts prohibit forcible conversion and make the offence punishable.
The Madhya Pradesh High Court upheld the validity of the Act.
The Orissa High Court held that article 25(2) of the Constitution guarantees propogation of religion and conversion is a part Christian religion; that the State Legislature has no power to enact the impugned legislation which in pith and sub stance is a law relating to religion; and that entry 97 of List I would apply.
Upholding the validity of both the Acts, HELD: (1) Article 25 guarantees to all persons right to freedom and conscience and the right freely to profess, practice and propogate religion subject to public order, morality and health.
The word 'propogate ' has been used in the Article as meaning to transmit or spread from person to person or from place to place.
The Article does not grant right to convert other person to one 's own religion but to transmit or spread one 's religion by an exposition of its tenets.
The freedom of religion enshrined in article 25 is not guaranteed in respect of one religion only but covers all religions alike which can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following other religion.
What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one 's own religion.
[616 B F, 617 A B] (2) The Madhya Pradesh Act prohibits conversion from one religion to another by use of force, allurement or fraudu lent means and matters incidental thereto.
Similarly, the Orissa Act prohibits conversion by the use of force or by inducement or by any fraudulent means.
Both the statutes, therefore, clearly provide for the maintenance of public order because if forcible conversion had not been prohibited that would have created public disorder in the States.
The expression "public order" has a wide connotation.
[617 C E] Ratilal Panachand Gandhi vs The State of Bombay & Ors. ; Ramesh Thappar vs The State of Madras ; ; Ramjilal Modi vs State of U.P. ; and Arun Ghosh vs State of West Bengal ; , followed.
(3) If an attempt is made to raise communal passions, e.g. on the ground that someone has been forcibly converted to another religion it would in all probability give rise to an apprehension of a breach of the public order affecting the community at large The impugned Acts therefore fall within the purview of Entry 1 of List II of the Seventh Schedule as they are meant to avoid 5 112SCI/77 612 disturbance to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.
The two Acts do not provide for the regulation of religion and do not fall under Entry 97 of List I. [618 A C]


judgement:
Appeal No. 1827 of 1970.
(From the Judgment and Decree dated 28 4 1970 of the Madhya Pradesh High Court (Gwalior Bench) in First Appeal No. 133 of 1968).
S.N. Andley and Uma Dutta, for the appellants Ram Panjwani and H.S. Harihar, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal on certificate by Prithvi Raj Taneja (now deceased and represented by his legal repre sentatives) against the judgment of the Madhya Pradesh High Court whereby the High Court partially accepted the appeal filed by the appellant regarding the quantum of compensa tion for the acquisition of land.
A plot of land measuring 27 bighas and 17 biswas situated in Ashok Nagar, district Guna, belonging to the appellant was acquired for the construction o,f a police station and residential quarters for policemen.
A bigha, it is stated, is equivalent to 2,500 square yards.
The land sought to be acquired measured 68,658 square yards.
Notification under section 4 of the Land Acquisition Act for the acquisition of the land was issued on April 7, 1961.
The Land Acquisition Officer as per award dated June 13, 1961 awarded compensation for the land at the rate of Rs. 100 per bigha.
In addition to that, he awarded a sum of Rs. 1,175 for large trees and Rs. 1,380 for small trees standing on the land.
The appellant was also awarded Rs. 1,000 as compensation for a well which had been sunk in the. land, and Rs. 800 for a house standing on the land In all, the appellant was awarded a sum of Rs. 7,616.
including solatium at the rate.
of fifteen per cent by the Land Acqui sition Officer.
The appellant wanted compensation for the land at the rate of Rs. 10 per square yard.
He accordingly had the matter referred to the District Judge.
Learned Additional District Judge determined the market value of the land in question to be Rs. 900 per bigha.
Regarding the well, the Additional District Judge awarded compensation of Rs. 3,000 as against the amount of Rs. 1,000 which had been awarded by the Land Acquisition Officer.
In other respects, the award of the Land Acquisition Officer was upheld.
Computing solatium at the rate of 10 per cent, the.
total amount awarded by District Judge to the appellant was Rs. 32,285 besides interest at the rate of six per cent per annum.
The appellant not being satisfied with the award of the Additional District Judge took the matter in appeal to the High Court.
The High Court awarded compensation to the appellant at the rate of Re. 1.
per square yard for the land in question.
The High Court also awarded Rs. 2,500 for the loss of earnings to the appellant.
The rate of solatium for compulsory acquisition was increased by the High Court from ten per cent to, fifteen per cent.
In all, the appel lant was held entitled to a compensation of Rs. 88,381 besides interest at the rate of six per cent per annum.
The appellant thereupon obtained a certificate of fit ness for appeal to this Court under article 133(1)(a) of the Constitution, as it stood at that time.
In appeal before us, Mr. Andley on behalf of the appel lant has argued that more than half of the land in dispute is within.
the municipal limits of Ashok Nagar Municipality, while the remaining land was also likely to be included within those limits shortly.
It is further stated that the land in question abutts Ashok Nagar Isagarh Road and is situated near the tehsil building and the. railway station.
Learned counsel has also referred to the fact that small plots of land adjoining the land in dispute were sold at rates of Rs. 9 and Rs. 8 per square yard during the years 1958 to 1960.
In this respect, we find that the High Court has considered most of the above circumstances and has come to the conclusion that Re. 1 per square yard represents fair market value of the land in dispute.
The High Court has also referred to the special circumstances under which the small plots were sold and their price was fixed.
We agree with the High Court that the price 635 paid for small plots of land cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
We may in this context refer to a recent judgment in the case of Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
C) wherein this Court observed that it is well settled that in determining compensation the value fetched for small plots of land cannot be applied to the lands covering a very large area and that the large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
Section 23 of the Land Acquisition Act provides that in mining the amount of compensation to, be awarded for the land acquired under the Act, the Court shall take into.
account inter alia the market value of the land at the date of the publication of the notification under section 4 of the Act.
The market value means the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired.
In considering market value the disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded.
There is an element of guess work inherent in most cases involving determination of the market value of the acquired land.
But this in the very nature of things cannot be helped.
The essential thing is to keep in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be dis turbed (see Thakur Kanta Prasad Singh (dead) by L. rs.
vs State of Bihar(2).
After having been taken through the material on the record, we find no infirmity in the judgment of the High Court as might induce us to disturb its find ing.
The appeal consequently fails and is dismissed but in the circumstances without costs.
Appeal dismissed.

summary/full:
The appellant 's land was acquired and compensation was awarded to him by the Land Acquisition Officer.
Demanding a higher amount, the appellant had the matter referred to the District Judge who increased the award, but still discon tented, the appellant went in appeal.
The High Court also increased the compensation but could not satisfy the appel lant who thereupon obtained leave to appeal to the Supreme Court, contending that small plots of land adjoining his large area were sold at much higher rates.
Dismissing the appeal, the Court, HELD: 1.
The price ' paid for small plots of laud cannot provide a safe criterion for determining the amount of compensation for a vast area of land.
The large area of land cannot possibly fetch a price at the same rate at which small plots are sold.
[635 A B] Smt.
Padma Uppal etc.
vs State of Punjab & Ors.
; , applied.
The essential thing is to keen in view the relevant factors prescribed by the Act.
If the judgment of the High Court reveals that it has taken into consideration the relevant factors, the assessment of the market value of the acquired land should not be disturbed.
[635 D E] Thakur Kanta Prasad Singh (dead) by L. Rs vs State of Bihar ; , applied.


judgement:
Civil Appeal No. 883 and 898 905/75.
Appeals by Special Leave from the: Judgment and Order dated 20 2 75 of the Karnataka High Court in Writ Petition Nos.
5825/74 and 5818, 5820, 5821, 5822, 5823, 5824, 5828 and 5829 of 1974.
R.B. Datar for the Appellants in all the appeals.
V.P. Raman, Addl.
Genl (In CA 883/75) and N. Nettar for RR 1 and 2 in all the appeals.
The Judgment of the Court was delivered by JASWANT SINGH J.
This judgment shall dispose of Appeals Nos. 883 and 898 to 905 of 1975 which are, directed against the common judgment dated February 20, 1975 of the High Court of Karnataka at Bangalore dismissing writ petitions Nos.
5825, 5818, 5820, 5822 to 5824, 5828 and 5829 of 1974 on the ground that the appellants had no right to maintain the same.
The circumstances leading to 'these appeals are: The appellants held the posts of Shambogues on hereditary basis under the Mysore Village Offices Act, 1908.
In writ peti tion No. 133 of 1959 entitled Gazula Daseratha Rama Rao vs State of A.P. & Ors.
(1) decided on December 6, 1960, this Court held that a law which recognised the custom by which a preferential right to, an office vested in the members of a particular family was not consistent with the fundamental right guaranteed by Article 16 of the Constitution; that a custom which is recognised by law with regard to a heredi tary office must yield to a fundamental right and_section 6(1) of the Madras Hereditary Village Offices Act/II of 1895 in so far as it made discrimination on the ground of descent only was violative of the ' fundamental right under Article 16(2) of the Constitution and was void.
With a view to giving effect to tile principle settled by this decision, the Legislature of the.
then State of Mysore comprising the territories the erstwhile States of Mysore and Coorg and certain parts of the erstwhile Stales of Bombay, Hyderabad and Madras enacted the Mysore Village Offices Abolition Act, 1961 (Act XIV of 1961) (hereinafter referred to as 'the Abolition Act ') abolishing all the hereditary village offices including the office of Shambogue or village Ac countant created under the Mysore Village Offices Act, 1908.
Pursuant to sub section (3) of section 1 which autho rise.d the State Government to fix a date for the commence ment of the Act, the Government of Mysore issued a notifi cation on January 9, 1963 notifying that the Abolition Act would come into force with effect from February 1, 1963.
(1) ; 1961 S C. 564.
6 112 SCI/77 628 Shortly after the according of the assent to the Aboli tion Act by the President on July 8, 1961, the Governor of Mysore flamed rules called the Mysore General Service (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961 in exercise of the powers vested in him under the proviso to Article 309 of the Con stitution and other powers enabling him in that behalf.
These Rules, as evident from their title, were designed to regulate the recruitment, pay and other conditions of serv ice of Village Accountants.
Rule 10 of the 1961 Rules which was in the nature of a non obstante provision provided for the initial recruitment to the posts of Village Accountants to be made from amongst persons holding the posts of village officers on the date of commencement of those Rules provided that such persons had passed the S.S.L.C. examination or an equivalent examination and their age did not exceed 40 years on the said date.
By a proviso which was introduced in the year, 1963, it was provided that in the event of persons satisfying the qualifications mentioned in Rule 7 not being available even after the vacancies are twice advertised, the recruitment should be made from amongst persons holding the posts of village officers who were not more than 50 years of age on the date of commencement of the said Rules and who had passed the Lower Secondary or Vernac ular Final or equivalent examination.
By a notification issued on January 6, 1963, the Govern ment of Mysore directed the Deputy Commissioners to appoint persons recruited under the 1961 Rules as village account ants and relieve the then holders of their offices.
On the issue of the aforesaid notification dated January 9, 1963, a number of writ petitions under Article 226 of the Constitution were filed in the High Court challenging the legality and constitutional validity of the Abolition Act on the ground that it was a piece of colourable legislation.
During the pendency of the writ petitions, an ad interim order staying the operation of the aforesaid Notification dated January 9, 1963 was issued by the High Court.
As a consequence of the stay order, the appellants and a number of other persons who were holding tile posts of Shambogues under the Mysore Village Offices Act, 1908 had to be con tinued by the State Government in the posts held by them.
The writ petitions were eventually dismissed by the High Court by its judgment dated December 9, 1963 which was confirmed by this Court vide its judgment dated January 21, 1966 rendered in B.R. Shankaranarayana & Ors.
vs State of Mysore(1).
Thus the constitutional validity of the Abolition Act was finally upheld by the Court.
During the pendency of the appeals against the judgment of the High Court dated December 9, 1963, the State Legislature enacted the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'the Act ') which came into force on April 1, 1964.
Section 16 of the Act provides for the appointment of Vil lage Accountants and the continuance of village accountants hold the said posts immediately before the commencement of the Act.
Sub section (1) of section 16 lays down that, subject to the general orders of the State Government and the Divisional Commissioner, the Deputy Commissioner can appoint Village Accountants for villages or groups of vil lages.
Sub section (2) of section 16 provides that the (1) A.I.R. 1966 S.C. 1571.
629 persons holding the office of the Village Accountant before the commencement of the Act, shall be deemed to be Village Accountants for such villages till another person is ap pointed under sub section (1 ) of section 16.
Thus sub section (2) of section 16, it would be seen, was designed to cover the case of the persons who had perforce to be continued as Shambogues because of the aforesaid stay order issued by the High Court despite the abolition of those posts by the Abolition Act.
The 1961 Rules were repealed and replaced by another set of Rules called the Karnataka General Services (Reve nue.
Subordinate Branch) Village Accountants (Recruitment) Rules, 1970 (hereafter referred to as the 1970 Rules) made by the State Government in exercise of the powers conferred by sections 16 and 17 of the Act.
Rules 4 and 5 of the 1970 Rules which were amended from time to.
time stood as follows on the relevant date : "4.
Recruitment.
(1) Recruitment to the cadre of village Accountant shah be made by direct recruitment from amongst : (i) persons who have served as Village Offi cers; (ii) local candidates whether in service or not, who have put in a total of not less than one year of service as on 1st January, 1970, if sufficient number of eligible persons are not available under (i); (ii) persons who have been regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of the re cruitment and working as Panchayat Secretaries who have passed the S.S.L.C. examination or any other examination declared as equivalent thereto by the State Government if sufficient number of eligible persons are not available under (ia) ; (iii) persons who are regularly recruited as Panchayat Secretaries in accordance with the rules in force at the time of recruitment and working as Panchayat Secretaries who (a) have passed the Middle School examination or any other examination declared as equiva lent thereto by the State Government; and (b) have put in not less than 10 years of service as Panchayat Secretaries as the case may be if sufficient number of eligible persons are not available under (ii); 630 (c) are not more than 50 years of age as on 1st April, 1967; (iv) xx xx xx (v) others, if sufficient number of persons are not available under any of the above categories.
(2) No persons other than the persons referred to in categories (ii) and (iii) of sub rule (1) "shall be eligible for appoint ment under these rules unless he has passed the S.S.L.C. examination or any examination declared by State Government as equivalent thereto.
(3) The limit for appointment under sub rule (1) shall be (i) 33 years in the case of a person belonging to any of the Scheduled Castes or Scheduled Tribes; and (ii) 28 years in the case of others as on 1st January, 1970.
Provided that in the case of person who have served as Village Officer or as Panchayat Secretary such age as on 1st April, 1967, shall not exceed 50 years.
Provided further that in the case of local candidates, such age shall be as on 1st Janu ary, 1965: Explanation For the purpose of this rule "ViIIage Officer" means a person who held a 'Village Office ' other than in inferior village office as defined in the Karnataka Village Offices Abolition Act, 1961 (Karnataka Act 14 of 1961)." "5.
Committee for selection (1) There shall be a Committee for each district consisting of the Deputy Commissioner of the District, the Assistant Commissioner, shall be the Chairman of the Committee and one of the members appointed by the Deputy Commission er shall be the Secretary.
(2) The Committee shall call for applica tion for appointment as village Accountants and make selection in the manner laid down in the Mysore State Civil Services (Direct Recruitment by Selection) Rules, 1967.
(3) The decision of the Committee shall be final subject to the approval of the Division al Commissioner.
(4) The list approved by the Divisional Commissioner shall be published and appoint ments shall be made in order in which the names of persons selected are arranged in the said list.
" 631 Pursuant to the 1970 Rules, applications were invited by the Recruitment Committee in the year, 1972 to fill up the posts of Village Accountants in the District of Has san.
After sorting out the applications received in re sponse to the: advertisement, the Committee interviewed the applicants who. were eligible for appointment and prepared a list of the selected candidates for appointment as Village Accountants.
This list was quashed by the High Court by its judgment dated November 19, 1972 rendered in writ petition No. 1871 of 11972 entitled Komari Gowda vs State of Mysore & Ors.
and the Committee was directed.
to select the candidates afresh in accordance with law.
Consequently the Committee again interviewed the eligible candidates and prepared a fresh list of the selected candi dates which was published in the Karnataka Gazette on May 30, 1974.
Thereafter, the Deputy Commissioner, ' Hassan issued orders of appointment of the candidates who were selected by the Recruitment Committee.
Some of the candi dates thus selected were posted as Village Accountants under section 16(2) of the Act to the villages in which the appellants were functioning.
As the.
appellants had to give up their posts in consequence.
of the aforesaid fresh appointments under section 16(2) of the Act, they filed the aforesaid writ petitions impugning (i) the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution, (ii) the selection and appointment of respondents 3 to 191 as Village Accountants and praying that a writ of mandamus be issued directing respondents 1 and 2 to continue them as Village Accountants under section 16(2) of the Act.
The writ petitions having been dismissed by the High Court as stated above.
, the appellants have come up in appeal to this Court.
The sole question that requires to be determined in these appeals is whether the appellants could maintain that aforesaid writ petitions.
It is well settled that though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for the exercise of the extraordinary jurisdiction by the High Court under the said Article.
It is also well established that a person who is not aggrieved by the discrimination complained of cannot maintain a writ petition.
The constitutional validity of the Abolition Act abolishing all hereditary village offices including the office of the Shambogue or Village Accountant having been upheld by this Court in B.R. Shankanarayana & Ors.
vs State of Mysore (supra), and the first preference in the matter of appointment of Village Accountants having been given by Rule 4 of the 1970 Rules to all persons.
belonging to the category and class of the appellants who had served as Village Officers, the appellants who did not apply for appointment as Village Accountants in response to the afore said notification issued by the Recruitment Committee and did not possess the prescribed qualification, could not complain of the unconstitutionality of the 1970 Rules or of the infringement of, Articles 4 and 16 of the Constitution which merely forbid improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who. are similarly circumstanced but do not exclude the laying down of selective tests nor prevent the Government from laying general educational 632 qualifications for the post in question.
The High Court was, therefore, right in holding that the appellants have no right to maintain the aforesaid writ petitions.
The appeals accordingly fail and are dismissed but without any order as to costs.
P.H.P. Appeals dismissed.

summary/full:
The appellants held the post of Shambhogues on hereditary basis under the Mysore Village Offices Act 1908.
This Court in the case of Gowla Dasrath Ramarao held that a law which recognises the custom by which a preferential right to an office vested in the members of a particular family was not consistant with the fundamental right guaranteed by Article 16 of the Constitution and that the Madras Hereditary Village Offices Act of 1895 in so far as it made discrimina tion on the ground of descent only was violative of Article 16(2) of the Constitution and, therefore, void.
With a view to give effect to the said judgment of this Court Mysore Village Offices Abolition Act of 1961 was enacted abol ishing all the hereditary Village Offices including the office of Shambhogues or Village Accountants created under the Mysore Villages Offices Act 1908.
The President gave his assent to the said Act.
Thereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to regulate the recruitment, pay and other conditions of service of Village Accountants.
Rule 10 provided for the initial recruitment to the post of Village Accountants to be made from amongst persons holding posts of Village Offi cers on the date of commencement of those rules provided they fulfilled certain educational qualifications and were below a certain age Challenge to the constitutional validi ty of the said Act was negatived by this Court in the case of B.R. Shankaranarayana & Ors.
vs State of Mysore AIR.
The State Legislature enacted the Karnataka Land Revenue Act 1964 Section 16 of the said Act provides for the appointment of Village Accountants and the continu ance of Village Accountants hold the said post immediately before the commencement of the Act.
Section 16(e) provides that persons holding the office of the Village Accountant before the commencement of the Act shall be deemed to be village Accountants for such villages till other persons were appointed.
The 1961 rules were repealed and replaced by Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules.
Rules 4 and 5 lay down the eligibility of the persons for the ap pointment as Village Accountant .and the constitution of a Committee for selection and the method of selection.
The Recruitment Committee invited applications, interviewed the applicants who were eligible and prepared a list of selected Candidates and, thereafter, issued the order of appointment.
As the appellants had to give up their posts in consequence of the fresh appointments they filed the present writ peti tions impugning the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution and challenging the selection and appointment of respondents Nos. 3 to 191 as Village Ac countants and for a direction that they should be continued as Village Accountants.
The High Court dismissed the writ petitions.
Dismissing the appeals, HELD: 1.
Though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for invoking the exercise of the extraordinary jurisdiction by the High Court under the said Article.
It is well estab lished that a person who 627 is not aggrieved by the discrimination complained of cannot maintain a writ petition.
The constitutional validity of the Abolition Act abolishing all hereditary Village Offices having been upheld by this Court, the appellants who did not apply for appointment as Village Accountants in response to the notification inviting applications, since they did not possess the.
prescribed qualifications, could not complain of the unconstitutionality of the 1972 Rules or of the infringement of Articles 14 and 16 of the Constitution.
The High Court, therefore, was right in holding that the appellants have no right to maintain the writ petitions.
[631 E H 632 A]


judgement:
ivil Appeal No. 283 of 1972.
Appeal by Special Leave from the Judgment and Order dated 12 7 1971 of the Delhi High Court in of 1967.
Income Tax Reference No. 31 of 1967.
Bishamber Lal for the Appellant.
V.S. Desai, J. Ramamurthi and R.N. Sachthey for the Res pondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated July 12, 1971, of the High Court out of these facts: The appellant (hereinafter referred to as the assessee) is an individual.
The assessment year is 1955 56.
Bharat Union Agencies Pvt. Ltd. had spent Rs.53,398/ after the personal necessities of the assessee during the previous year ending 30 9 1964, without charging for the same.
The assessee was not a director Of the said Company.
He however was the beneficial owner of 1800 shares out of the total of 3000 equity shares of the said Company during the previous year.
Similarly, Alien Berry and Co. Pvt. Ltd. had spent a sum of Rs. 4406/ after the personal necessities of the assessee, without charging for the same.
The Income tax Officer treated the total benefit of Rs. 57,804/ received by the assessee from these two Companies, as his `income ' under section 2(6C)(iii) of the Income tax Act, 1922 which was introduced by the Finance Act, 1955 with effect from 1 4 1955, and charged it to tax along with some other items of income.
The assessee carried an appeal to the Appellate Assistant Commissioner who found that the assessee was beneficial owner of the shares of Bharat Union Agencies Pvt.
Ltd. carrying more than 20 per cent of the voting power.
He further held on the basis of certain findings in the Report of the Commission of Inquiry on the administration of Dalmia Jain Companies published in 1963, that the assessee 656 had 100 per cent of the share holding control of Allen Berry and Co. Pvt.
Ltd. The Appellate Assistant Commis sioner did not specifically deal with the question whether the assessee was "concerned in the management" of both these Companies.
In the result he upheld the order of the Income tax Officer.
The assessee preferred a further appeal to the Income tax Appellate Tribunal which held that the assessee was "concerned in the management of the Bharat Union Agencies (P) Ltd., being the beneficial owner of shares carrying more than 20% of the voting power, and as such the benefit of Rs. 53,398/ received by him from that Company was his 'in come ' within the later part of Clause (iii) of section 2(6C) of the Income tax Act, 1922.
On this reasoning the Tribunal dismissed the assessee 's appeal in regard to the item of Rs. 53,398/ .
However, it allowed, on a different ground his appeal with regard to the item of Rs. 4406/ received from Alien Berry and Co. (P) Ltd. In this appeal we are not concerned with that item any more.
At the instance of the assessee, the Tribunal stated the case and referred the following question under section 66(1 ) of the Income tax Act, 1922 to the High Court: "Whether on the facts and in the circum stances of the case, the sum of Rs. 53,398/ spent by Bharat Union Agencies P. Ltd. after the personal necessities of the assessee is income within the meaning of section 2(6C)(iii) of the Income tax Act, 1922".
The High Court answered this question against the asses see.
Hence this appeal.
At the outset, Shri Bishamber Lal, appearing for the appellant, tried to contend that the item of Rs. 53,398/ received by the assessee from Bharat Union Agencies Pvt.
Ltd. was not a "benefit or perquisite" within the contempla tion of section 2(6C)(iii) of the 1922 Act because, firstly, the constituents of this item were not cash amounts but gifts or bounties, and secondly, the receipt of this benefit by the assessee was unauthorised and could not be claimed by him as of right on the basis of any agreement with the Company.
This was altogether a new plea.
It was not even indi rectly raised before the authorities under the Income tax Act or the High Court.
It has not been raised even in the Special Leave Petition under Article 136 of the Constitu tion.
It was never the case of the assessee that this amount of Rs. 53,398/ was not "benefit obtained" by the assessee from the Company within the meaning of section 2(6C) (iii).
On the contrary it is apparent from the judgment of the Tribunal, that there was "no dispute about the fact that the assessee received benefits from both the Companies to the extent stated by the authorities below".
i.e. benefits to the extent of Rs. 53,398/ and Rs. 4406/ were received by the assessee from Bharat Union Agencies P. Ltd. and Allen Berry and Co. Pvt. Ltd. respectively.
The plea now sought to 657 be raised in regard to the item of Rs. 53,398/ involves a question of fact.
We therefore did not permit the Counsel to raise this plea for the first time at the time of argu ments before us.
Counsel next contended that the expression "concerned in the management of the business of the Company" takes in only that person who by virtue of a position or office held by him in the Company, legally and actually participates in the management of its business and not he who holds no such position or office but is in remote control of the Company and its affairs merely on account of being in ownership of a certain number of shares, carrying more than 20 per cent or even the majority of the voting power.
In support of this restricted construction of the term "concerned", Counsel referred to a decision of the Madras High Court in Arya Bhavan, Madras vs
M.S. Narayana Rao(1), wherein Rajamannar C.J. held that the word "concerned" as used in the context of 'workman ' in section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, connotes a more intimate and direct relation to the matter than the word "interest" and there fore this term should be given a more restricted meaning than the word "interest".
Mr. Bishamber Lal also referred to the meaning of the terms "concerned", "concerning" as given in the Dictionary, "Words and Phrases", Permanent Edition pp.
504 505 Vol. 8.
Before dealing with this contention, it will be appro priate to examine the material part of section 2(6C)(iii) of the 1922 Act, which runs as follows: "(iii) the value of any benefit or perquisite, whether convertible into money or not, obtained from a company either by a director or by any other person who has a sub stantial interest in the company (that is to say, who is concerned in the management of the business of the company, being the beneficial owner of shares, not being shares entitled to a fixed rate of dividend whether with or without a right to participate in profits, carrying not less than twenty per cent of the voting power), and any sum paid by any such company in respect of any obligation which but for such payment would have been payable by the director or other person afore said.
" From an analysis of Clause (iii), it is clear that it falls in two distinct parts.
The first part is confined to the obtaining of the value of any benefit or perquisite from a Company by a director even if he has no substantial interest in the Company.
The second part applies to a person who may not be a director but has a substantial interest in the Company.
What is "substantiaI interest" is further equated by the succeeding expression, "that is to say", with the coexistence of two elements, namely, (i) concern in the management of the business of the Company, and (ii) beneficial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than twenty per cent of the voting power.
There is no dispute before (1) A.I.R. 1960 Mad.
658 us that the assessee had obtained the benefit of Rs. 53,398/ from Bharat Union Agencies Pvt.
Ltd. It is further admitted that he holds 1800 shares out of the total of 3000 equity shares in this Company, carrying a voting power of 60 per cent.
Thus, the existence of the second element is more than satisfied.
Controversy pivots around the first element, only.
The arguments which have been advanced before us on behalf of the assessee with regard to the construction and application of the expression "concerned in the manage ment" of the business of the Company, were canvassed before the Tribunal, also.
The Tribunal repelled these arguments.
The reasoning of the Tribunal with which the High Court found itself entirely in agreement is as under: "Shri Sharma conceded the position that the assessee was controlling both the Compa nies.
in question.
To exercise control over a Company is something more than to manage the Company.
A person who manages the company may not necessarily be in a position to con trol the business or affairs of the Company.
He may be managing under the instructions of.
those who are controlling the Company.
But a person who controls a Company also directly or indirectly through the managerial staff manages the business of the Company.
It is again not necessary that the person who man ages the business of the Company should be rightfully entitled to do it.
A person who is not rightfully entitled to manage the business of the Company but usurps the power by virtue of his certain position, is, in our opinion, certainly a person covered by this expression.
It is also not necessary. that the management should be carried on in an ostensible manner.
One who carried on the management indirectly and imperceptibly through the persons who outwardly and ostensi bly carry on the management is covered by the expression.
It is not necessary, in our opinion, that the management should be both seen, and felt; it is sufficient if it is felt, without being seen.
" In our opinion, the above is a correct exposition of the law on the point.
The word "concern" is not a term of art, having a precise, fixed meaning.
It has several nuances, and is used to convey diverse shades of meaning over a wide spectrum.
It may mean "to have a relation to, or bearing on, be of interest or, importance" or "to have an anxiety, worry".
"Concerned" as an adjective may mean "interested", "involved".
In one context, it may mean one thing, and in a different context another.
The decisions as to the mean ing of this word used in a different context in another statute, are scarcely of much value in construing it in the setting of the provision with which we are concerned.
The best way therefore to construe this word is with refer ence to the context in which it is used.
In sub clause (iii) of section 2(6C) of the Income tax Act, 1922, the word "concerned" takes its colour from the words "in the manage ment of the business" in association with which it occurs.
In the context of business, "manage" means "to control, to guide, to administer, to conduct or direct affairs; 659 carry on 'business ' (Shorter Oxford Dictionary, Webster New World Dictionary).
"Management" includes the act of manag ing by direction, or regulation, or administration or con trol or superintendence.
Construed with reference to the context, and the circum stances of a case, the expression "person concerned in the management of the business" may take in not only .a person who directly participates or engages in the management of the business but also one who indirectly controls its man agement through the managerial staff, from behind the scenes.
The assessee 's admission that he is in control of the Company necessarily includes an admission of his being "concerned in the management of the business of the Compa ny", We, therefore, agree with the High Court, that the ambit of the term "concerned" in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office holder of the Company.
In the context of "manage ment" it is wide enough to include every person 'interested ' in the management, in the sense of having the direction and control of the managerial staff.
On the facts of the case, the assessee was such a person.
We are therefore, of opinion that the High Court was right in answering the question referred to it, against the assessee.
The appeal fails and is dismissed with costs.
P.B.R. Appeal dismissed.

summary/full:
Section 2(6C)(iii) of the Income tax Act, 1922 provides that the value of any benefit or perquisite, whether con vertible into money or not, obtained from a company either by a director or by any other person who has a substantial interest in the company (that is to say, who is concerned in the management of the business of the company, being benefi cial owner of shares, not being shares entitled to fixed rate of dividend carrying not less than 20% of the voting power) and any sum paid by any such company in respect of any obligation which, but for such appointment, would have been payable by the director or other person aforesaid is income.
The assessee was the beneficial owner of 1800 out of 3000 equity shares of a company.
He was, however, not its director.
He had a similar interest in another company.
Both the companies had spent on his personal necessities a large sum of money, which the Income tax Officer treated as his income under section 2(6C)(iii) of the Act.
The Appellate Assistant Commissioner, as also the Tribunal, dismissed his appeal against the order of the Income tax Officer and the High Court answered the reference against the assessee.
In appeal to this Court it was contended that the ex pression "concerned" in the management of the business of the company takes in only the person who legally partici pates in the management of its business and not one who has only remote control of its business.
even if he had the majority of voting power.
Dismissing the appeal, HELD: The expression "person concerned in the management of business"may take in not only a person who directly partici pates or engages in the management of the business but also one who indirectly controls its management through the managerial staff from behind the scenes.
[657 B] 1.
(a) The term "concerned" in section 2(6C)(iii) cannot be restricted to a person who is an employee of the business or an office holder of the company.
In the context of "manage ment" it is wide enough to include every person "interest ed" in the management, in the sense of having the direction and control of the managerial staff.
[659 C D] (b) The word "concerned" is not a term of art, having a precise and fixed meaning.
It has several nuances, and is used to convey diverse shades of meaning.
It may mean "to have a relation to.
or bearing on, be of interest 0r importance" or "to have an anxiety, worry".
"Concerned" as an adjective may mean "interested", "involved".
In one context, it may mean one thing and in a different context another.
[658 G H] (c) The word "concerned" takes its colour from the words "in the management of the business" in association with which it occurs.
In the context of business, "manage" means "to control.
to guide.
to administer to conduct or direct affairs ', carry on 'business. "Management" includes the act of managing by direction or regulation or adminis tration or control or superintendence.
[658 H, 659 A] 655 (2) The first part of the clause is confined to the ob taining of the value of any benefit or perquisite from a company by a director, even if he has no substantial inter est in the company.
The second part applies to 2a person who may not be a director but has a substantial interest in the company.
What is "substantial interest" is further equated by the succeeding expression "that is to say" with the co existence of two elements, namely, (i) concern in the management of the business of the company and (ii) benefi cial ownership of shares (not being shares entitled to a fixed rate of dividend) carrying not less than 20% of the voting power.
[657 G H] In the instant case, the assessee, Obtained the benefit from the company holding 1800 out of 3000 shares, that is, carry ing a voting power of 60% and, therefore, satisfied the second element.
His own admission that he was in control of the company necessarily includes an admission of his being "concerned in the management of the business of the company".
[658 A B]