judgement:
Appeal No. 1278 of 1969.
Appeal from the judgment and order dated March 13, 1969 of the Allahabad High Court in Special Appeal No. 1060 of 1967.
C.K. Daphtary,, Yogeshwar Prasad, S.K. Davon and section Bagga, for the appellants.
H.R. Gokhale, J.P. Goyal, Ilyas Hussain and V.C. Prashar, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Shelat, J.
The question arising in this appeal, by certificate, may be stated thus: When an applicant applies for a permit to run a passenger bus service on the ground that the route for which he applies, though one not yet opened, is necessary in public interest, but the Regional Transport Authority comes to.
the conclusion that it does not, and thereupon rejects his application, whether his order is one under section 48 of the , 4 of 1939 and is, therefore, appealable under section 64(a) of that Act ? The route involved in this case was the one between Meerut and Dankaur which had no direct passenger bus: service.
There were, however, two routes which were being operated, namely, one from Meerut to Bulandsharhar and the other from Siana to Dankaur, one crossing the other, so that if one wanted to go from Meerut to Dankaur there was no direct service, and therefore, he would have first to travel in the bus running from Meerut to Bulandshahar, get down at a place near Gulsothi and catch the bus running from Siana to Dankaur.
This was the position when the appellants, amongst others, applied to the Regional Transport Authority for permits to operate.
a direct service from Meerut to Dankaur.
This was, therefore, not a case where the R.T.A. had already decided upon opening the new route, fixed the number of permits necessary for such a route and then invited applications from operators.
Nevertheless, the R.T.A., follow 245 ing the procedure laid down in section 57 of the Act, published these applications, to which objections.
were raised amongst others by those who were operating on the routes.
earlier referred to.
These applications came up for consideration in the meeting held before the R.T.A. on July 28, 1965 when Item 3 of the Agenda for that meeting was: "To pronounce decision regarding recognition and classification of M eerut to Dankaur via Hapur Gulsothi Sikandarabad route.
and grant of permits thereon.
" It is apparent that Item 3 involved two questions for determination of the R.T.A.; (a) whether the route proposed by the appellants and others should be opened, and (b) if so, to whom, amongst the applicants, should permit or permits, depending upon the number of permits he.
should decide upon, should be granted.
After hearing the applicants and those who opposed them, the R.T.A. was satisfied that there was no sufficient demand for such a direct service, and therefore, there was no justification for opening the proposed new route.
Having arrived at that ' conclusion the question of granting or not granting permits to individual applicants did not arise and he rejected the applications of the ' appellants and other applicants.
Appeals having been filed before the Appellate Tribunal, the Tribunal reversed the order of the R.T.A. and granted permits to the three appellants.
The respondents thereupon filed writ petitions in the High Court for quashing the order of the Tribunal contending that no appeal against the order of the.
R.T.A. lay under section 64(a), and that con sequently, the Tribunal had no jurisdiction to entertain such appeals and grant permits to the appellants.
The learned Single Judge of the High Court, who.
heard the writ petitions in the first instance, dismissed them, but on appeal against his order the Division Bench of the High Court came to the conclusion that no appeal against the said order of the R.T.A. lay under section 64(a), and accordingly, allowed the writ petitions and quashed the Tribunal 'section order.
This appeal is directed against this order.
Counsel for the appellants urged that there was.
no provision in the Act separately providing for the R.T.A. to decide first as to whether particular route proposed by an applicant should be opened or not.
It was argued that the provisions of Ch., IV, and in particular sections 47 and 57, show that once an application for a permit is made and is published and objections thereto are invited and the R.T.A. applies his mind to it and rejects it, no matter what his reasons for such rejection are, his order amounts to.
a refusal under section 48 and is appealable under section 64(a).
The rival contention, on the other hand, was that section 47(3), which .
C1/70 4 246 contains the power of the R.T.A. to first determine the number of permits necessary for a particular route, [which decision, as held by this Court, is not appealable under section 64(a)], contains also the power to decide whether a proposed route should be opened or not, and that it is only after these two points are first ,decided, that the question, who amongst the applicants should be granted permits, arises.
It is at this latter stage that the question of granting or refusing to grant a permit arises under section 48, and it is against an order under that section that an appeal under 64(a) is provided.
The. argument was based on the principle that a right of appeal is not something which is inherent, but is that which and to the extent it is provided for by the statute.
The provisions of the Act relevant to the questions raised in this appeal as also their scheme have been more than once examined by this Court.
There is therefore, no necessity to analyse them once more.
In Abdul Mateen vs
R. K. Pandey(1) the ,question was whether the Bihar Government acting under section 64 A, as amended by the Bihar Amendment Act, 1950, had the power to increase the number of permits for which applications had been invited by the R.T.A. In negativing the claim that the State Government had such power, this Court inter alia held that section 47 (3) was concerned with a "general order" limiting .stage carriages on a consideration of matters specified in section 47, and that such an order can be modified by the R.T.A. if it so decides one way or the other.
But such a modification is not a matter of consideration when it is dealing with the actual grant of permit under section 48 read with section 57, for, at that stage what the R.T.A. has to do is to choose between various applicants who may have applied under section 46.
The Court held that that is not the stage when the "general order" passed under section 47(3) can be reconsidered, for, the order under section 48 is subject to section 47 including the provisions of section 47 ( 3 ) under which the "general order" limiting the number of permits is passed.
At page 531 of the Report, the Court further held that the appeal contemplated under section 64 is by a person who is aggrieved by the order specified therein and does not contemplate any appeal against "the general order" passed under section 47 (3 ).
On this view of section 47, it was lastly held that when an appeal is taken from an order under section 48 and a revision is ' applied for under section 64 A of the Bihar Amendment Act, the power of the Appellate Authority, as also of the State Government as the revisional authority, is as much subject to section 47(3) as the power of the R.T.A. under section 48, i.e., it cannot grant a permit beyond the limit.
already .decided upon under section 47(3).
In M/s. Java Ram Motar Service (1) ; 247 vs
section Rajarathinam,.(1) the R.T.A. had already introduced the new bus route and then had invited applications for permits.
34 applicants applied for permits.
The R.T.A, however, rejected them all on the ground that there was after all no need for the new route.
On these facts the question was, whether a person, whose application is rejected by the R.T.A. on the ground that there was no need for a new route, in spite of his decision previously arrived at that such a route was necessary, could appeal under section 64(a) against such rejection.
Following the decision in Abdul Mateen 's case(2) we held that: "the Authority had already resolved to introduce a new bus route and invited applications for a permit under sec.
57(2).
It could no doubt have acted under sec.
47 ( 3 ) and modified its earlier decision.
instead, what it did was that while considering the question as to who amongst the 34 applicants should be granted that permit, i.e., at the stage not under section 47(3) but under sec.
48 ( 1 ), it decided to refuse all applications on the ground that there was no longer any need for any such permit.
In other words, though the earlier order was still intact, the authority rejected the applications on the ground that there was no need for any fresh permit.
The order was clearly contrary to the previous order passed under sec.
47(3) and therefore cannot be said to be in consonance with sec.
47 as required by sec.
48 ( 1 ).
The order was not one under sec.
47(3) but under sec.
48(1) refusing thereby the applications including those of the appellant and the respondents and was therefore subject to an appeal under sec.
64(a).
" Does it make any difference to.
the principle laid down in these decisions whether the R.T.A. invites applications having previously decided to introduce a new route or whether an applicant proposes such a new route and applies for a permit.
Abdul Mateen 's case(2) and the case of Java Ram Motor Service(1) were cases where the R.T.A. had first decided to introduce A new route and had then invited application.
On the other hand, in R. Obliswami Naidu vs The Addl.
State Transport Appellate Tribunal, Madras(3) no such decision had been previously taken by the R.T.A. and the appellant had applied for a permit on a new route.
The question canvassed there was whether the R.T.A. had first to decide the necessity of such a new route, and then having come to such a decision proceed (1) CA 95 of l965 decd.
on October 27, 1967.
(2) ; (3) C.A. 1426 of 1968, dec. on Feb. 17, 1969.
248 to examine the question whether an applicaNT should or should not be ' granted the permit.
The Appellate Tribunal had held that the: procedure followed by the R.T.A. was not in accordance with law as it had failed to determine the question of the need for a service for the new route applied for by the appellant before deciding his application for permit, and had contravened the provisions of section 47(3).
The appellant challenged the order by a writ petition in the High Court which was dismissed.
In the appeal in this Court against that order, Hegde, J., speaking for the Court, upheld the view of the Appellate Tribunal and held that though section 47 (3), if read by itself, did not throw light on the question, secs.
47 and 57, when read together, made it clear that the R.T.A. had first to arrive at a decision whether there was the necessity for.
the new route, and then decide under section 48 whether the appellant should be granted a permit or not This decision clearly shows that it makes no difference between cases where applications are invited by the R.T.A. after having come to the conclusion as to the necessity for a new route, or where an applicant himself proposes a new route and applies for a permit.
In both the cases, the R.T.A. has to decide, before reaching the stage of section 48 when he considers individual applications for deciding as to whom amongst the applicants the permit should be granted, whether the new route is necessary in the interest of the public.
The decisions referred to above, in our opinion, clearly lay down that the R.T.A. has first to make "a general order" as stated in Abdul Mateen 's case(1) under section 47(3) as to the number of permits necessary for a new route and he cannot exceed that limit while he is at the next stage when he considers.rs under section 48 read with section 57 as to who amongst the applicants shouId be granted the permit or permits.
Such a "general order" limiting the number of permits presupposes that he has come to a decision that the new route either proposed by him or by an applicant or applicants is necessary in public interest.
Obviously, he does not have to decide the number of permits necessary for such a new route unless he first decides that the new route should be opened.
If the order as to the number of permits is a "general order" passed under section 47 (3), in respect of which the individual applicants are not concerned with and is anterior to the stage under section 48 when applications of the individual operators are taken into consideration,and therefore, not appealable under section 64(a), it must follow a fortiori that the decision as to whether the new route is necessary.
or not is equally a "general order" arrived at either earlier or contemporaneously with the decision as 10 the number of permits.
If the latter order is not appealable, (1) 249 it cannot be that the former, i.e., the decision whether the new route is necessary or not, is not an equally "general order" with which individual applicants are not concerned, and can appeal against it under section 64(a).
On this view, it would at first sight appear as if the R.T.A. has an unlimited or unbridled power in connection with the decision as to whether a proposed route should be opened or not.
That it is not so is clear from section 64 A introduced in the Act by Act 100 of 1955 which confers revisional power on the State Transport Authority, either on its own motion or on an application made to it, to call for the record of any case in which an order has been made by the: R.T.A. and in which no appeal lies, and if it appears to the State Transport Authority that such an order is improper or illegal, to pass such order as it deems fit.
In our view the Division Bench of the High Court correctly interpreted sections 47, 48, 57 and 64, and the decisions of this Court in Abdul Mateen 's case(1) and the case of Jaya Ram Motor Service(2).
The appeal, consequently, must fail and has to be dismissed.
The Appellants will pay to the respondents the costs of this appeal.
R.K.P.S. Appeal dismissed.
(1) ; (2) C.A. No. 95 of 1965 decd.
on Oct. 27, 1967.

summary/full:
The appellants, among others applied to the Regional Transport Authority for permits to operate a direct bus service on.
a route in Meerut District, U.P., which had no direct passenger bus service.
After hearing the appellants and those who opposed them, the Regional Transport Authority was satisfied that there was no sufficient demand for such a direct service, and therefore, there was no justification for opening the proposed new route.
The. applications of "the appellants and other applicants were therefore rejected.
The Appellate Tribunal reversed the order of the Regional Transport Authority and granted permits to the three appellants.
The respondents therefore filed writ petitions in the High Court for quashing the order of the Tribunal contending that no appeal against the order of the Regional Transport Authority lay under section 64(a) of the and that consequently, the Tribunal had No. jurisdiction to entertain such appeals, and grant permits to the appellants.
A Single Bench dismissed the petitions but the Division Bench held that no appeal against the order of the Regional transport Authority lay under section 64(a) and accordingly, allowed the writ petitions and quashed the Tribunal 's order.
On appeal to this Court, HELD: The appeal must be dismissed.
The decisions of this Court clearly lay down that the R.T.A. has first to make "a general order" as stated in Abdul Mateen 's case under section 47 (3) as to the number of permits necessary for a new route and he cannot exceed that limit while he is at the next stage when he considers under section 48 read with, section 56(7) as to.
who among the applicants should be granted the permit or permits.
Such a 'general order ' limiting the number of permits presupposes that he has come to a decision that the new route either proposed by him or by an applicant or applicants is necessary in the public interest.
If the order 'as to the number of permits is a 'general order ' passed under section 47(3) with which the individual applications are not concerned and is anterior to the stage under section 48 when applications of the individual operators are taken into, consideration, and therefore is not appealable under section 64 (a) it must follow a fortiori that the decision as to whether the new route is necessary or not is equally 'a general order ' arrived at either earlier or contemporaneously with the decision as to the number of permits.
If the latter order is not appealable, it cannot be that the former i.e. the decision whether the new route is necessary or not, is not an equally 'general order ' with which individual applications are not concerned and can appeal against it under section 64 (a).
However, the powers of the R.T.A. in connection with the decision as to whether a proposed route should be opened or not are not un 244 limited and unbridled.
The power is subject to the revisional power of the State Government under section 64 A. [250 E 251 C] Abdul Mateen vs
R.K. Pandev ; ; M/s Java Ram Motor Service vs
section Rajarathinam C.A. 95 of 1965, dec.
on October 27, 1967; R. Obliswami Naidu vs The Addl.
State Transort Appellate Tribunal Madras C.A. 1426 of 19 '68, dec.
on Feb. 17, 1969, applied.


judgement:
Appeal No. 1220 of 1966.
Appeal by special leave from the judgment and order dated April 6, 1965 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 58 D of 1966.
M.C. Chagla, B. Datta and J.B. Dadachanji, for the appellant.
Niren De, Attorney General, V. A. Seyid Muhammad, R.H. Dhebar and S.P. Nayar, for respondent No. 1.
Niren De, Attorney General, V.A. Seyid Muhammad, R.H. Dhebar, S.P. Nayar and Joy Joseph, for respondent No. 2.
S.J. Sorabji, A.J. Rana K.L. Hathi and K.N. Bhat, for the interveners.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of the Punjab High Court (Circuit Bench) Delhi in which the validity and legality of the levy of cess by way of excise duty on the rubber used by manufacturers of chappals under the provisions of the , (Act XXIV of 1947) as amended, hereinafter called the Act, have been assailed.
70 M/s. Jullundur Rubber Goods Manufacturers ' Association is an association of rubber chappal manufacturers at Jullundur in the State of Punjab.
Its members, who manufacture chappals, are stated to use.
about 15 to 20% of rubber in the process of their manufacture while the rest 'of the material used by them consists of various other articles.
A petition was filed under articles 226 & 227 on behalf of the aforesaid Association, the second petitioner being its Secretary, challenging the levy and collection from the manufacturers of chappals under the provisions of the Act, the Rules framed and the relevant notification issued thereunder of a duty as a result of the amendment made in section 12 of the Act by the Rubber Amendment Act of 1960.
A learned Single Judge dismissed the writ petition and his judgment was affirmed by a division bench of the High Court.
The contentions which have been raised are: (1 ) the duty sought to be imposed under section 12 as amended being outside the ambit of Entry 84 of List I in the Seventh Schedule to the Constitution is beyond the legislative competence of the Parliament; (2) Section 12(2) suffers from the vice of excessive delegation.
It confers uncontrolled and unrestricted discretion upon the Rubber Board to levy upon and collect duty of excise from either the owners of the rubber producing estates or the users so called manufacturers (of rubber) without specifying the circumstances under which it should be imposed upon the one or the other nor has any guiding policy or principle been laid down in the Act for making a choice.
(3) In any case, the Rules which have been framed do not satisfy the provisions of section 12(2) of the Act and do not indicate with sufficient clarity and precision on whom the levy is to be made and from whom the duty is to be collected as between the owners of the estates and the manufacturers.
The relevant statutory provisions may first be noticed.
In 1947 the Central legislature enacted The Rubber (Production and Marketing) Act, 1947.
Its name was changed to by the Rubber (Production and Marketing) Amendment Act, 1954.
The Act was enacted to provide for the development under the control of the Union of the rubber industry.
Under section 4 the Rubber Board was to be constituted.
The functions of the Board were enumerated in section 8.
It was to be its duty to promote by such measure as it thought fit development of the rubber industry.
Under section 10 it was obligatory on every person owning land planted with rubber plants to get himself registered as an owner by applying to the Board.
Section 12 provided for the imposition of rubber cess.
Under section 14 no person could sell or otherwise dispose of or buy or otherwise acquire rubber 71 except in accordance with the terms of general or special license issued by the Board.
The Central Government was given the over all control over the acts of the Board by section 22.
Section 25 empowered the Central Government to make Rules.
Prior to the amendment made by the Rubber Amendment Act of 1960 (Act XXI of 1960) the duty of excise was payable under s.12(2) by the owners of the estates on which rubber was produced and it was to be paid by ' them to the Board within one month from the date on which they received a notice of demand.
By Act XXI of 1960 an important change was made which affected the manufacturers and the duty could be collected by the Board either from the owners of the estates or from the manufacturers by whom the rubber is used.
At this stage the relevant provisions of the Act with which we are concerned may be reproduced : section B(e) "manufacturer" means any person engaged in the manufacture of any article in the making of which rubber is used;" (h) "rubber" means (i) (ii) (iii) latex, (dry rubber content) in any state of concentration, and includes scrap rubber, sheet rubber, rubber in powder and all forms and varieties of crepe rubber, but does not include.
rubber contained in any manufactured article;" section 4(3 ) "The Board shall consist of (a) a Chairman to be appointed by the Central Government; (b) two members to represent the State of Madras, one of whom shall be a person representing rubber producing interests; (c) eight members to represent the State of Kerala, six of whom shall be persons representing the rubber producing interests, three of such six being persons representing the small growers; (d) ten members to be nominated by the Central Government of whom two.
shall represent the manufacturers and four labour; and (e) three members of Parliament of whom two shall be elected by the House of the People and one by the Council of States; and 72 (f) the Rubber Production Commissioner, ex Officio." section 12(4)"For the purpose of enabling the Board to assess the amount of duty of excise levied under the section (a) the Board shall, by notification in the Official Gazette, fix a period in respect of which assessments shall be made; and (b) without prejudice to the provisions of section 20, every manufacturer shall furnish to the Board a return not later than fifteen days after the expiry of the period to.
which the return relates, stating (i) in the case of an owner, the total quantity of rubber produced on the estate in each such period; Provided that in respect of an estate situated only partly in India, the owner shall in the said return show separately the quantity of rubber produced within and outside India; (ii) in the case of a manufacturer, the total quantity of rubber used by him in such period out of the rubber produced in India.
" The contention raised on behalf of the appellant association is that under Entry 84 of List I in the Seventh Schedule to the Constitution the duties can be levied on goods manufactured or produced in India.
Excise duty, it is pointed out, can be levied only on the actual producers and manufacturers of rubber but in the very nature of such duty it could not be imposed on users o.r consumers of that commodity.
It is suggested that sub section
(1 ) of section 12 is the charging section and sub section
(2) provides for the machinery for levy and collection of tax.
But sub section (2) cannot alter the substantive provision in the charging sub section (1) and since the Parliament has employed the words ':duty of excise" which have a well understood meaning the incidence of tax would fall only on the actual producers.
Once the incidence of tax was shifted to the users the tax would cease to be one which would fall within Entry 84.
In re the Central Provinces and Berar Act No. XIV of 1938(1) Gwyer C.J. described "excise duty" thus: "But its primary and fundamental meaning in English is still that of a tax on articles produced or (1) , 40 41.
73 manufactured in the taxing country and intended for home consumption".
The learned Chief Justice, however, proceeded to add that there could be no reason in theory why such duty should not be imposed even on the retail sale of an article if the taxing .Act so provided.
It could obviously be imposed at the stage which was found to be most convenient and lucrative as that was a matter of the machinery of collection and did not affect the essential nature of the tax.
Referring to this decision of the Federal Court and several other cases it was observed in R.C. Jail vs Union of India(1) at page 451: "Excise duty is primarily a duty on the production or manufacture of goods produced or manufactured within the country.
It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer.
Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost.
The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience.
Whether in a particular case the tax ceases to be in essence an excise duty, and the rational connection between the duty and the person on whom it is imposed ceased to exist, is to be decided on a fair construction of the provisions of a particular Act".
The above statement of law in no way supports the argument that the excise duty cannot be collected from persons who are neither producers nor manufacturers.
Its incidence certainly falls directly on the production or manufacture of goods but the method of collecting will not affect the essence of the duty.
In our opinion sub section
(2) of section 12 provides for the method of collection as the excise duty can be collected either from the producers or from the manufacturers as defined by the Act which would include members of the appellant association who use rubber in the manufacture of chappals.
It seems to us that if the provisions of Entry 97 in List I in the Seventh Schedule as also the provisions of article 248 of the Constitution are kept in view the Parliament would have legislative competence even with regard to the imposition of a tax which does not fall within Entry 84.
It will be a kind of non descripts tax which has been given the nomenclature of a duty of excise.
(1) [1962] Supp. 3 S.C.R. 436.
CI/70 6 74 Counsel for the appellant association quite properly has not challenged this position but has merely sought to lay emphasis on sub section ( 1 ) being the charging section.
We find it difficult to endorse the reading of sub section
(1 ) and sub section
(2) of section 12 in isolation.
Not only the statute but also, the section have to be read as a whole and together, and in our judgment whatever be the nature of duty, Parliament would undoubtedly have legislative competence under Entry 97 of List I in the Seventh Schedule read with article 248 of the Constitution.
We may next deal with the question whether section 12(2) suffers from the vice of excessive delegation and whether there has been violation of article 14 as uncontrolled and unbridled discretion has been conferred on the Board to levy and collect the tax from either the producer or the manufacturer (the user of rubber).
It is pointed out that there is no guiding principle or policy laid down in the Act to enable the Board to make a choice between the two categories.
The principles governing such questions have been laid down in several decisions of this Court.
It is well established that essential legislative functions consist of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature.
What can be delegated is the task of subordinate legislation necessary for implementing the purpose and objects of an enactment.
Where legislative policy is enunciated with sufficient clearness or a standard is laid down the 'courts will not interfere.
It will depend on consideration of the provisions of a particular Act including its preamble as to the guidance which has been given and the legislative policy which has been laid down in the matter.
In a taxing statute the guidance may take the form subjecting the rate to be fixed by the local body to the approval of the Government which acts as a watch dog on the actions of the local body in this matter on behalf of the legislature.
The reasonableness of the rates may be ensured by providing Safeguards laying down the procedure for consulting the wishes of the local inhabitants.
So long as the law has provided the method by which the local body can be controlled and there is a provisions to see that reasonable rates are fixed it can be said that there is guidance in the matter of fixing the rates for local taxation; vide Wanchoo, C.J. in Municipal Corporation of Delhi vs Birla Cotton, Spinning and Weaving Mills, Delhi & Anr.(1) In section 12(2) the Parliament has made it quite clear that the Board can levy and collect the duty of excise either from the owner of a rubber estate on which the rubber is produced or from the manufacturer by whom such rubber is used.
The Board has (1) ; at pp.
269 270.
75 further been enjoined to do so in accordance with Rules made in this behalf.
The Board, as constituted under section 4, has to be a high powered body and among its members those representing the rubber producing interests, the small growers, the manufacturers and the labour are included.
It can, therefore, keep in view the interests of all concerned.
AccOrding to the preamble of the Act it was meant for the development of the rubber industry under the control of the Union.
That is the main purpose for which the Board has to function.
All amounts paid to the Board by the Central Government under section 12(7) of the Act have to go to the general fund of the Board under section 9A. Section 12(7) provides that the proceeds of the duty of excise collected has first to be credited to the Consolidated Fund of India reduced by the cost of collection and then it has to be paid over by the Central Government to the Board.
The Board is thus vitally interested in the collection of the duty and it has to see that such duty is collected without undue delay and proper expedition.
It has also to look to the best possible method of realization.
In the light of this scheme as embodied in the Act it is difficult to sustain the challenge on the ground of excessive delegation.
The policy of the Act has been enunciated with sufficient clarity and the guidance has been furnished by the provisions to which reference has been made as to how the Board should exercise its powers in the matter of levy and collection of tax.
There is also another important safeguard which is contained in section 22 of the Act.
All acts of the Board by virtue of that section shall be subject to the control of the Central Government which may cancel, suspend or modify any action taken by the Board.
The provision in section 12(2) that the Board shall levy and collect the duty, in accordance with the Rules is another important safeguard against the Board acting arbitrarily in the matter of collection of duty from the owners of the rubber estates or the manufacturers.
These Rules are to be framed by the Central Government under section 25(1)(xxa) which is to the following effect: "the cases and circumstances in which the duty of excise under section 12 shall be payable by the owner and the manufacturers respectively, the manner in which the duty may be assessed, paid or collected, the regulation of the production, manufacture, transport or sale of rubber in so far as such regulation is necessary for the proper levy, payment or collection of duty;" Section 25(3) makes it obligatory on the Central Government to place every rule before each House of Parliament for a specified period of 30 days and those Rules can be subject to criticism and can be modified or even be abrogated.
Thus it is not possible 76 to hold that the Parliament has abdicated its functions in enacting section 12(2) of the Act.
Learned Attorney General has relied on certain decisions of this Court according to which it can be left to the authority which has to levy and collect the tax to decide whether to collect from one category of persons or the other category where persons in both categories can be subjected to tax.
In M.M. Ipoh & Ors.
Income tax Madras(1) the validity of section 3 the Income tax Act, 1922 was challenged on the ground that it was violative of article 14 of the Constitution.
That section invested the taxing authority with an option to assess to tax the income collectively of the association of persons.
The argument raised was that that Act set no principles and disclosed no guidance to the Income tax Officer in exercising the option.
The scheme of the Income tax Act was considered and it was observed that the duty of the Income tax Officer was to administer its.
provisions in the interest of public revenue and to prevent evasion of tax and his function was mainly quasi judicial.
The decision of bringing to tax either the income of the association collectively or the shares of the members of the association separately was not final and was subject to appeal.
It was held that the very nature of the authority exercised by the Income tax Officer and his duty to prevent evasion or escapement of liability constituted adequate enunciation of principles and policy for his guidance.
In Raghubar Dayal Jai Prakash vs The Union of India(2) the validity of certain provisions of the Forward Contracts (Regulation) Act, 1952 was assailed.
In regard to section 15 of that Act the argument was that it conferred unguided and arbitrary power upon the Central Government to choose any commodity it liked and bring the Act into operation in respect of the commodity which the Government chose at any time it pleased.
In this manner the interest of the traders could be vitally affected by rendering illegal a contract which was.
perfectly legal when it was entered into.
This Court referred to the Report of the Expert Committee on the Bill which became an Act, dealing with the economic implications of forward trading and for the necessity of regulating such contracts in particular goods.
It was observed that the suitability of a commodity for forward trading depended on factors which were far from static and which were subject to variations over a period of, time.
A continuous assessment was required of all elements which would necessitate regulation.
All this could not.
be specified in a statute.
It was for that reason that a Forward Markets Commission had been constituted on whom the duty had been cast of advising the Government on the situation as it existed from time to time.
The following observations are pertinent and may be reproduced: (1) ; (2) [1962] 3 S.CR.
547. 77 "In our opinion, the selection of the commodity the regulation of forward trading in it or of prohibition such trading can only be left to the Government and the purpose for which the power is to be used and the machinery created for the investigation furnish sufficient guidance as to preclude any challenge on the ground a violation of article 14.
" In the statement of objects and reasons appended to Bill No. 32 of 1960 when amendments were made in section 12 of the Act by the Rubber Amendment Act, 1960, it was stated inter alia: "This method of collection of the cess provided under the Act has led to considerable evasion of cess by the owners of the estates, either by evasion of registration or by failure to submit correct returns or any returns at all.
There are about 26,000 estates under production in the country and most of them are small holdings.
Many of them do not render returns of production to the Rubber Board and thus evade payment of duty.
From October, 1947 to December 1954, it was found that 20,608 tons of rubber escaped assessment and the Board suffered during the period a loss Rs. 2,30,805.
The Rubber Board estimates that under the present system there is no likelihood of more than 65 per cent of the potential revenue being realised each year.
With a view to improving the efficiency of collection, it is proposed to amend section 12 of the Act so as to enable the cess to be collected either from the owners or the manufacturer who ultimately consumes the rubber produced in the estates.
There are at present 347 registered rubber manufacturers in the country.
It is felt that it would be far more easy to collect the cess from a small number of manufacturers than from about 26,000 producers whose number will increase year by year.
The proposed amendment of section 12 in the amending Bill is an enabling measure for the administrative change in the method of collection being contemplated.
" Although it may not be permissible to take the statement of objects and reasons into consideration for construing the provisions of an Act the facts contained in such a statement can certainly be looked at for the purpose of seeing any alleged infringement of article 14.
It is quite clear from the data given that the Rubber Board was finding it difficult to levy and collect 78 the duty from the owners of rubber estates and it was considered that it would be much easier to collect the same from the manufacturers.
The Board was, therefore, to collect the duty in accordance with the rules made in this behalf by the Central Government.
Thus it was necessary, in view of the entire facts and circumstances stated before, that it should be left to the rule making authority to indicate the cases and the circumstances in which the duty of excise was to be collected from the owner or the manufacturer respectively.
It was open to the rule making authority to vary the rules according to the changing circumstances and conditions.
The Board which was a high powered body was mainly responsible for collection of the duty and the rules would naturally be made in consultation with it from time to time.
We are unable to see how the challenge on the ground of discrimination under article 14 can be sustained in view of all these reasons.
It does not appear that the Board can 'discriminate in an arbitrary manner between owners of rubber estates and the manufacturers or between persons inter se of the same category.
The Central Government has framed rules pursuant to the power conferred by section 25 of the Act.
Unfortunately the rules relating to furnishing of returns and collection of duties are not properly worded and suffer from lack of clarity.
Under Rule 33 the Board can call for information and documents from owners of rubber estates or any licensed dealer or manufacturer relating to the stock of rubber held and sale of rubber etc.
Under el.
(e) all manufacturers have to submit half yearly returns in form M showing the total quantity of all rubber purchased or otherwise acquired and consumed or used in the process of manufacture.
Rule 33A provides for production of accounts by an owner if he fails to furnish in time the return referred to in sub section
(4) of section 12 or if he furnishes a defective return.
The Board can, after checking the amounts and after, making such further enquiry as it may deem fit assess the amount payable under sub s.(2) of section 12.
Similar provision is made with regard to manufacturers by Rule 33B.
Rule 33D, however, is material and may be reproduced: (1 ) "Every manufacturer shall by demand notice sent through registered post or in such other manner as the Board may direct be intimated of the amount assessed on the quantity of rubber acquired during the periods specified in rule 33(e).
On receipt of such notice, the manufacturer shall pay to the Board the amount specified therein either in cash at the Board 's office at Kottayam or by money order or by 79 bank draft or .cheque duly crossed and payable at Kottayam to the Secretary of the Board within 30 days of the receipt of the said notice.
(2) On such demand being made, if a manufacturer fails to pay the amount within the due date, the Board may take steps to report the fact to the Central Government or the State Government concerned for recovery of the outstanding amount as an after of land revenue.
" Now the above rule seems to contemplate the filing of return both by the owners of rubber estates and manufacturers.
But under Rule 33D the demand notice can be sent only to a manufacturer on receipt of which he must make payment to the Board of the amounts specified therein.
On his failure to make such payment the Board can take steps for recovery of the amounts due as arrears of land revenue by reporting to the Central Government or the State Government as the case may be There is no such procedure prescribed with regard to owners of estates.
It would follow that under the rules the demand notice is to be sent only to the manufacturers and the amounts of duty are to be realised from them alone.
The substantive provisions of sub sections
(4), (5) and (6) of section 12 also contemplate assessment being made with regard to the returns to be furnished by owners and manufacturers.
Any person aggrieved by an assessment has been given the right of appeal to the District Judge.
But as pointed out before, there is no provision either in the statute or in the rules for a demand to be made and a coercive process to be employed in the event of failure to make the payment.
That is done by Rule 33D alone from which it would be reasonable to conclude that under the rules it is only the manufacturers who are liable to pay the amount of duty.
The rules can, therefore, be said to make a definite provision with regard to the category of persons from whom the collection of the duty is to be made, namely, the manufacturers.
For all the reasons given above the appeal fails and it is dismissed with costs.
Y.P. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellants, an 'association of rubber chappal manufacturers who were using rubber in their manufacturing process, filed a petition in the High Court challenging the levy and collection from the manufacturers of chappals, of a duty under section 12 of the aS amended by Rubber Amendment Act, 1960.
The grounds of challenge were: (1) that the imposition on the appellants was outside the ambit of Entry 84 of List I of VII Schedule of the Constitution, which deals with the duties which can be levied on goods manufactured or produced in India; (2) Section 12(2) which provides the machinery for levy and collection has given uncontrolled and unbridled discretion to the Rubber Board and no guiding principle or policy was laid down in the Act to enable the Board to choose between the owners of estates of rubber or the users of the rubber; and (3) the rules framed under the section do not indicate with sufficient clarity and precision on whom the levy was to be made.
The High Court dismissed the petition.
In appeal to this Court, HELD: (1) (a) The excise duty could be imposed at the stage which was found to be most convenient and lucrative as that is a matter relating to the machinery of collection and did not affect the essential nature of the tax.
Therefore, merely because the incidence of tax is shifted to the users of rubber under section 12(2) which provides for the method of collection, the tax would not cease to be one falling within Entry 84.[73 B C;F G] R.C. fall vs Union of India, [1962] Supp.
3 S.C.R. 436, followed.
Re: the Central Provinces and Berar Act, 14 of 1938, , applied.
(b) If the duty is not excise duty because it is imposed on the user Parliament would even then have legislative competence to provide for its collection from users, whatever be its nature, under Entry 97 of List I read with article 248 of the Constitution.
[73 H; 74 A B] (2) The task of subordinate legislation necessary for implementing the purpose and objects of an enactment can be delegated, so long as the law has provided the method by which the.
delegate can be controlled, there is a guidance for fixing rates of tax and there is a provision to see that reasonable rates are fixed.
[74 D F] Municipal Corporation of Delhi vs Birla Cotton, Spinning and Weaving Mills, ; , followed.
In the present case, the Act was enacted for the purpose of development of rubber industry under the control of the Union Parliament has 69 enacted that the Rubber Board can levy and collect the duty either from the owner of the rubber estate or the user of the rubber.
But the Board is enjoined to do so in accordance with the Rules made by Central Government under section 25(1) (a) of the Act and which are placed before each House of Parliament for approval.
The Board itself is a high powered body and all interests are represented among its members 'and all its acts are subject to the control of the Central Government under section 22.
[74 H; 75 Ii; 78 C] Further.
the Board is vitally interested in the collection of the duty and it has to see that such duty is collected without undue delay and proper expedition.
The objects and reasons of the Amending Act (which can be taken into consideration for the purpose of seeing if there is any alleged infringement of article 14) show that the Board was finding it difficult to levy and collect the duty from the owners and it was considered that it would be much more easy to collect it from the users, in accordance with the rules.
Thus it is necessary that it should be left to the rule making authority to indicate the cases and the circumstances in which the duty was to be collected from the owner or user.
[75 C; 77 H; 78 A B] Since the policy of the Act has been enunciated with sufficient clarity, and guidance has been furnished as to how the Board should exercise its powers in the matter of levy, there is no discrimination and article 14 is not violated.
Ipoh vs
C.I.T. Madras; , and Raghubar Dayal Jai Prakash vs Union of India, ; , referred to.
(3) A combined reading of rr.
33, 33A and 33D indicates that a definite provision is made with regard to the category of persons on whom the collection of the duty is to be made, namely, the users of rubber.


judgement:
Civil Appeal No. 1274 of 1966.
Appeal by special leave from the judgment and decree dated November 23, 1965 of the Allahabad High Court in First Appeal No. 208 of 1958.
K.S. Shavaksha, R.A. Shah, 1.
B. Dadachanji arid Bhuvanesh Kumari, for the appellant.
223 S.K. Mehta, K.L. Mehta and Sona Bhatiani for respondent.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave from '; the judgment of the Allahabad High Court dated NOvember 23,, 1965 in First Appeal No. 208 of 1958.
The appellant is a limited liability company incorporated under the English Companies Act with its registered office at Lincoln, England.
It carries on business in the manufacture and sale of diesel internal combustion engines and their parts and accessories.
Ruston Hornsby (India) Ltd., a company registered in India under the is a subsidiary of the appellant.
The respondent is a firm carrying on business in the manufacture and sale of diesel internal combustion engines and their parts.
The appellant was a registered proprietor of the registered trade mark Ruston being registration No. 5120 in Class 7 in respect of internal combustion engines.
Ruston and ' Hornsby (India) Ltd., is the registered user of the said trade mark and manufactures in India and sells in India internal combustion.
engines under the trade mark "RUSTON".
Sometime in June, 1955 the appellant came to.
learn that the respondent was manufacturing and selling diesel internal combustion engines under the trade mark "RUSTAM".
On July 8, 1955 the appellant wrote. through its attorneys a letter to the respondent and called upon it to desist from using the trade mark "RUSTAM" on its. engines as it was an infringement of the registered trade mark "RUSTON".
The defendant replied that "RUSTAM" was not an infringement of "RUSTON" as the words "RUSTAM INDIA" was used.
On February 17, 1956 the appellant instituted a suit praying for a permanent injunction restraining the.
respondent and its agents ' from infringing the trade mark "RUSTON".
On January 3, 1958 the Additional District Judge, Meerut, dismissed the suit holding that there was no visual or phonetic similarity between "RUSTON" and "RUSTAM".
The appellant took the matter in appeal in the Allahabad High Court.
By its judgment dated November 23, 1965 the High Court held that the use of the word RUSTAM by the respondent constituted infringement of the appellant 's trade mark "RUSTON" and the respondent should be.
prohibited from using the trade mark "RUSTAM".
But the High Court proceeded to.
hold that the use of the words "RUSTAM ' INDIA" was not an infringement because the plaintiff 's engines were manufactured in England and the defendant 's engines were manufactured in India.
The suffix "India" would be a sufficient warning that the engine sold was not a "RUSTON" engine manufactured in England and the respondent may be permitted ' to use the combination "RUSTAM INDIA".
224 Section 21 of the states "Subject to the provisions of section 22, 25 and 26 the registration of a person in the register as proprietor .
of a trade mark in respect of any goods shall, give to .that person the exclusive right to.
the use of the Trade mark in relation to those goods and, without prejudice to the generality of the ,foregoing provision, that right shall be deemed to be infringed ' by any person who, not being the 'proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either (a) as being used as a trade mark; or (b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade.
" The distinction between an infringement action and a passing off action is important.
Apart from the question as to.
the nature of trade mark the issue in an infringement ,action is quite different from the issue in a passing off action.
In a passing off action the issue is as follows: .
"Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plantiff 's goods ?" But in an infringement action the issue is as follows: "Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff 's registered trade mark ?" It very often happens that although the defendant is not using the trade mark of the plaintiff, the get up of the defendant 's goods may be so much like the plaintiff 's that a clear case of passing off would be proved.
It is on the contrary conceivable that although the defendant may be using the plaintiff 's mark the get up of the defendant 's goods may be so different from the get up.
of the plaintiff 's goods and the prices also may be so different that there "would be no probability of deception of the public.
Nevertheless, in an action on the trade mark, that is to say, in an infringement 225 action, an injunction would issue as soon as it is proved that the: defendant is improperly using the plaintiff 's mark.
The action for infringement is a statutory right.
It is dependent upon the validity of the registration and subject to.
other restrictions laid down in sections 30, 34 and 35 of the Act.
On the other hand the gist of a passing off action iS that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive.
It is enough that the get up of B 's goods has become distinctive of them and that there is.
a probability of confusion between them and the goods of A. No. case of actual deception nor any actual damage need be proved.
At ' common law the action was not maintainable unless there had been fraud on As part.
In equity, however, Lord Cottenham L.C. in Millington vs Fox(1) held that it was immaterial whether the defendant had.
been fraudulent or not in using the plaintiff 's trade mark and granted an injunction accordingly.
The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule.
The two actions, however, are closely similar in some respects, As was observed by the Master of the Rolls in Saville Perfumery Ltd. vs June Perfect Ltd.(2).
"The Statute law relating to infringement of trade marks is.
based on the same fundamental idea as the law relating to passing off.
But it differs from that law in two particulars, namely (I ) it is concerned ' only with one method of passing off, namely, the use of a trade mark, and (2) the statutory protection is absolute in the sense that once a mark is shown to offend, the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor.
Accordingly, in considering the question of infringement the Courts have held, and it is now expressly provided by the Trade Marks Act, 1938, section 4, that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive.
" In an action for infringement where the defendant 's trade mark is identical with the plaintiff 's mark, the COurt will not enquire whether the infringement is such as is likely to deceive or cause" confusion.
But where the alleged infringement consists of using (1) ; (2) 58 R.P.C. l47 at 161.
226 not the exact mark on the Register, but something similar to.
it, the test of infringement is the same as in an action for passing off in other words, the test as to likelihood of confusion or deception arising from similarity of .marks is the same both in infringement and passing off actions.
In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the 'word "RUSTAM" and therefore the use of the bare word ',RUSTAM" constituted infringement of the plaintiff 's trade mark "RUSTON".
The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to.
him to challenge that finding.
If the respondent 's trade mark is deceptively similar to.
that of the appellant the fact that the word 'INDIA ' is added to the respondent 's trade mark is of no consequence and the appellant is enitled to succeed in its action.n for infringement of its trade mark.
We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiff 's trade mark "RUSTON" and from using it in connection with the engines machinery and accessories manufactured and sold by it under the trade mark of "RUSTAM INDIA".
The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of "RUSTAM" or " 'RUSTAM INDIA".
The appellant 'is also.
granted a decree for nominal damages to the extent of Rs. 100/ .
The appellant is further entitled to an order calling 'upon the respondent to deliver the appellant price lists, bills, invoices and other advertising material bearing the mark " 'RUSTAM" or "RUSTAM INDIA".
"The appeal is allowed with costs to the above extent.
Y.P. Appeal allowed.

summary/full:
For the infringement of its registered trade mark "RUSTON" by the respondent 's trade mark "RUSTAM", the appellant filed a suit for permanent injunction.
The respondent pleaded that "RUSTAM" was not an infringement of "RUSTON" and stated that the words "RUSTAM INDIA" were used.
The trial court dismissed the suit holding that there was no visual or phonetic similarity between "RUSTON" and "RUSTAM".
The High Court in appeal, held that there was deceptive resemblance between the words "RUSTON" and "RUSTAM", but held that the use of "RUSTAM INDIA" did not constitute an infringement because the appellant 's engines were.
manufactured in England and the respondent 's in India, and the suffix 'INDIA ' was sufficient warning that the engine sold was not the engine manufactured in England.
Allowing the appeal this Court, HELD: In an action for infringement when the defendant 's trade mark is identical with the plaintiff 's mark, the court will not enquire whether the infringement is such as is likely to deceive or cause confusion.
But where the alleged infringement consists of using not the exact mark on the Register but something similar to it, the test of infringement is the same as in an action for passing off.
In other words, the test as to the likelihood of confusion or deception arising from similarity of marks is the same both in infringement and, passing off actions.
[225 H] In the present case the High Court found that there was deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM" constituted infringement of the appellant 's trade mark "RUSTON".
The respondent did not prefer an appeal against the judgment of the High Court on this point and it was, therefore, not open to him to challenge that finding.
If the respondent 's trade mark was deceptively similar to that of the appellant the fact that the word "INDIA" was added to the respondent 's trade mark was of no consequence and the appellant was entitled to succeed in its action for infringement of its trade mark.
[226 B] Millington vs Fox, 3 MV & Cr. 338 and Savillo Perfumery June Perfect Ltd., at 161, referred to.


judgement:
minal Appeal No.70 of 1968.
Appeal by special leave from the judgment and order dated October 6, 1967 of the Allahabad High Court, Lucknow Bench in Criminal Appeal No. 164 of 1966.
R.K. Garg, S.C. Agarwal and Uma Dutta, for the appellants.
O.P. Rana, for the respondent.
238 The Judgment of the Court was delivered by Jaganmohan Reddy, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court setting aside the conviction of Hori Lal and Bisram under section 307 read with section 34 of the I.P.C. and instead convicting them under section 326 read with section 34 I.P.C. and sentencing each of them to rigorous imprisonment for 5 years.
The appellants.
who are the residents of Bhitwa Gadan Khera are friends belonging to the same party.
It was alleged that on June 14, 1964 Bisram 's cattle strayed into the field and damaged the crop of Deo Dutt who is the nephew of Sagar Singh and Jeer Bahadur.
In respect of this damage Deo Dutt and his partner Ram Bharose.
complained to Bisram who along with some other persons went to the house of Deo Dutt and threatened him and the members of his family including Jeet Bahadur and Sagar Singh.
Thereupon Deo Dutt lodged a complaint in the police station.
Because of this complaint relations between the parties became strained as a result of which the accused stopped working for Jeet Bahadur and Sagar Singh and even asked the other members of his beradari to follow suit.
On March 29, 1965 at about 5.30 p.m. Jeet Bahadur P.W. 2 along with his laborer Sri Pal deceased was reaping the harvest.
The field of Sagar Singh P.W. 1 is situate just adjacent to the field of Jeer Bahadur with only a chak road between their fields.
It is the prosecution case that on that day both the accused armed with kantas went to the field of Jeet BahAdur and challenged him.
Immediately thereafter they began to deal kanta blows on Jeet Bahadur.
Jeer Bahadur P.W. 2 cried out whereupon Sagar Singh P.W. 1 hearing the shouts rushed to his aid.
Maya Ram P.W. 3 and Himachal and Ram Pal who were nearby also rushed to the aid of Jeet Bahadur.
Accused Bisram is said to have fired a revolver at Sagar Singh but he did not receive any inquiry.
Thereafter the accused ran away towards the village.
As Jeet Bahadur was injured, Sagar Singh P.W. 1 took him to the police station and there lodged a report exhibit Ka 1 at about 9.55 p.m. on March 29, 1965.
The investigation officer Bhanu Prakash Sharma, P.W. 5 investigated the crime,.
prepared site plan, recorded statements of the witnesses and seized blood stained mud.
Jeet Bahadur was admitted to the District hospital at Unnao.
Dr. Srivastava examined him on March 30, 1965 at 8.30 a.m. and found as many as 10 injuries of which injuries 2 to 7 were incised wounds, injuries 1 and 9 contusions and injuries 8 and 10 abrasions.
All the incised injuries except No. 7 showed that the bones had been cut.
These injuries are as follows : "2.
Incised wound .13" X 1" X bone vertically on the right half forehead just above the right eye brow.
239 3.
Incised wound 1 1/4" ><1/2">( bone cutting the underlying bone lower p art left humerus just above the left elbow on the back of left arm.
Incised wound obliquely 5" X 2" X bone cutting the underlying radius and above left in the middle of the left forearm back.
Incised wound 5"X I"X bone on the back of the left forearm lower I/3rd.
Slightly obliquely cutting both the bones of left forearm.
Incised wound 4 1/2"X 1" bone on the left leg middle back and laterally cutting the underlying tibia bone shaft.
" The defence of the accused is that they had been falsely implicated.
The prosecution examined Sagar Singh P.W. 1, Jeet Bahadur P.W. 2 and Maya Ram P.W. 3 as eye witnesses and since Sri Pal one of the eye witnesses died after his evidence was recorded by the committing magistrate, his deposition was admitted and treated as evidence under section 33 of the Evidence Act (exhibit Ka 11).
The learned Sessions Judge.
believed the eye witnesses and relying upon exhibit Ka 3 convicted the accused under section 307 read with section 34.
The learned Judge however acquitted them of the second charge of attempting to murder P.W. 1 with pistol.
In this appeal Mr. S.C. Agarwala learned counsel for the appellants contends firstly, that the injuries as found by the doctor do not justify the conviction of the appellants of grievous hurt inasmuch as there is no evidence that any of the bones was fractured or that the injured person was disabled for 20 days or more; secondly, that the contusions found on P.W. 2 would clearly belie the evidence of the eye witnesses that the injuries were inflicted by a kanta, and thirdly, that the deposition of Sri Pal ought not to have been admitted in evidence under section 33 because the death of Sri Pal has not been strictly proved.
The main question which requires to be determined in this case is whether there is sufficient evidence to establish that ,he appellant had caused the injuries found on P.W. 2, and if so, having regard to the injuries what is the offence which the appellants have ' committed.
It appears to us that there is sufficient credible evidence of the eye witnesses to prove beyond doubt that the appellants had caused injuries to P.W. 2.
Even if the evidence of P.W. 1 and P.W. 2 who.
are brothers, of whom P.W. 2 is the victim, is for the moment not considered, there is no reason why the evidence of P.W. 3 Maya Ram ought not 240 to be relied upon.
According to Maya Ram, he was in the Kallian when he heard the cries of Jeet Bahadur and rushed.
He says, "it was the time of about 5 or 5.30 ' p.m.
I heard an .alarm raised in the field of Jeet Bahadur.
I and Himachal ran to that side.
Ram Pal was coming up running from the western side.
In the field of Jeet Bahadur, I saw Bisram and Hori Lal accused present in court beating Jeet Bahadur with kantas.
We raised alarm.
After assaulting Jeet Bahadur Hori Lal and Bisram accused went away towards the east.
Sagar Singh was coming up running from his chak.
Sagar Singh was raising alarm.
Bisram accused fired the pistol at Sagar Singh, but Sagar did not sustain any injury.
I saw injuries on the body of Jeet Bahadur.
After it we took Jeer Bahadur to Hasanganj on a cot.
" The witness was cross examined at length but now here has it been suggested that he is an interested witness or he is speaking untruth.
Both the Sessions Court as well as the High Court relied upon his evidence which according to them fully corroborated the evidence of P.Ws. 1 and 2.
The fact that some contusions and abrasions were found on P.W. 2 does not impair the evidence of these witnesses because the doctor was not asked whether the injuries were possible if kanta blows are given.
It is quite possible to find contusions where two persons are giving blows with kantas which have also blunt asides.
Unless definite suggestions are made and the impossibility of finding any such injuries with kanta blows is elicited, we will not be justified merely on a submission from the bar to accept it and discard the evidence of the eye witnesses.
We, therefore, find no valid reason in not accepting the concurrent findings of both the courts that the appellants had caused injuries to P.W. 2 as spoken to by the witnesses.
these circumstance.s, it is unnecessary for us to express any view on the question whether the evidence of the investigating officer Bhanu Prakash Sharma that 'it has been learnt that Sri Pal has died ' is sufficient to prove the death of Sri Pal in order to admit the deposition of Sri Pal in the Committal Court under section 33 of the Evidence Act.
It now remains to consider whether the conviction of the appellants under section 326 for grievous hurt is justified.
The answer to this question would depend on the nature of the injuries which have been found on P.W. 2, namely, whether they are simple or grievous.
In order to justify conviction under section 326.
injuries on P.W. 2 must satisfy the requirements of cl. 7 or cl. 8 of section 320 of the Indian Panel Code, otherwise they will be treated as simple injuries.
Clauses 7 and 8 of section 320 I.P.C. provide that an injury could only be designated as grievous if it is (l) a fracture or dislocation of a bone or tooth, or (2) any hurt which 241 endangers life or which causes the sufferer to.
be ,during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
It is contended by the learned counsel for the appellant that none of the injuries 2 to 6 which were inflicted on P.W. 2 discloses that there is a fracture or dislocation of any bone.
These injuries, it is said, at the most show that the particular bones on which the injuries were inflicted were cut which however does not amount to a fracture.
It is true that fracture has not been defined in the penal code.
It is sometimes thought as in the case of Po Yi Maung vs Ma E Tin(1) that the meaning of the word fracture would imply that there should be a break in the bone and that in the case of a skull bone it is not merely sufficient that there is a crack but that the crack must extend from the.
outer surface of the skull to the inter surface.
In Mutukdhar Singh vs Emperor(2) it was observed that if the evidence is merely that a bone has been cut and there is nothing whatever to indicate the extent of the cut, whether a deep one or a mere scratch on the: surface of the bone, it will be difficult to infer that the injury is a grievous hurt within the meaning of section 320 of the Panel Code.
In our view, both these assumptions are misleading.
It is not necessary that a bone should be cut through and through or that the crack must extend from the.
outer to the inner surface or that there should be displacement of any fragment of the bone.
If there is a break by cutting or ,splintering of the bone or there is a rupture or fissure in it, would amount to.
a fracture within the meaning of el. 7 of section 320.
What we have to see is whether the.
cuts in the bones noticed in the injury report are only superficial or do they effect a break in them.
The nature of the injuries as spoken to by the doctor in his evidence, discloses the length, breadth and depth of each injury.
far as the depth of the injuries Nos. 3, 4, 5 and 6 is concerned, each one of the injuries shows that it is bone deep and they are described as cutting the underlying bone.
in injury 3 left humerus, in injury 4 radius, in injury 5 both the bones of the left forearm and in injury 6 the tibia bone shaft have been cut which would show that they are fractures.
Apart from this the doctor as noticed earlier has in his evidence said that these injuries are grievous.
It is contended that the doctor has not disclosed the reason why he thinks that the injuries were grievous.
But in our view the doctor would not be unaware of what injuries are grievous or what are simple.
At any rate, the nature of the injuries considered with the evidence of the doctor would undoubtedly establish that all the aforesaid" ' (1) A.I.R. (1937 ') Rang 253.
(2) A.I.R. (1942) Pat.
242 injuries were grievous.
these injuries were inflicted by kantas which are dangerous weapons and hence the conviction under section 326 is fully justified.
The appeal fails and it is dismissed.
Y.P. Appeal dismissed.

summary/full:
The appellants gave kanta blows resulting in a number of injuries to a person.
Some of injuries were incised wounds, some contusions, and some abrasions.
All the incised4 injuries except one showed that the bones had been cut.
On the question whether the conviction of the appellants under section 326, I.P.C. for grievous hurt was justified or not; HELD: The conviction under section 326 was fully justified.
In order to.
justify conviction under section 326, the injuries must satisfy the requirements of cl. 7 Dr cl. 8 of section 320 of the Indian Penal Code, otherwise they will be treated as simple injuries.
Clauses 7 'and 8 of section 320 I.P.C., provide that an injury could only be designated as grievous if it is (1) a fracture or dislocation of a bone or tooth, or (2) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
Fracture has not been defined in the Penal Code.
It is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone.
If there is a break by cutting or splintering of the bone or there is a rupture or fissure in it, would amount to a fracture within the.
meaning of cl. 7 of section 320.
What has to be seen is whether the cuts in the bones noticed in the injury report are only superficial or do they effect a break in them.
[242 H; 243 D F] In the present case, some of the incised injuries show that they were bone deep and were described as cutting the underlying bone, which would show that they were fractures.
Apart from this the doctor said that the injuries were grievous.
These injuries were inflicted by Kantas which are dangerous weapons.
Observations contra in Po Yi Maung vs Ma E Tin, A.I.R. (1937) Rang.
253 and Mutukdhar Singh vs Emperor, A.I.R. (1942) Pat. 376, disapproved.


judgement:
Appeal No. 1796 of 966.
300 Appeal from the judgment and order dated January 6, 1964 of the Madras High Court in O.S.A. No. 39 of 1961.
T.S. Sangameswaran and K. Javaram, for the appellant.
A. K. Sen, M.S. Narasimhan and section Balakrishnan, for respondents Nos. 1, 5, 6 and 7.
The Judgment of the Court was delivered by Ray, J.
This appeal is from the Judgment of the High Court at Madras dated 6 February, 1964 dismissing the appellant 's suit.
The important question which falls for consideration is whether the deed of trust dated 1 January, 1908 created an absolute dedication to.
charity subject only to a charge for the payment of maintenance to the members of charge of the founder 's family or whether the dominant intention of the founder was the maintenance of the family and the grant to.
the charities was secondary.
The trust deed was executed on 1 January 1908 by S.D. Mudaliar in favour of himself, A.P.M. Mudaliar, M.T.S. Mudaliar and C.V.S. Mudaliar.
S.D. Mudaliar and his pre deceased son D.S. Mudaliar 's adopted son section Mudaliar effected a deed of partition dated 25 November, 1907 in respect of the immovable and movable properties.
By the said deed of partition S.D. Mudaliar the settlor of the deed of trust obtained the property forming the subject matter of the said trust deed.
The founder dedicated the said property by the deed of trust to the trustees.
The trustees were the settlor and the three other Mudaliars, viz., A.P.M. Mudaliar, M.T.S. Mudaliar and C.V.S. Mudaliar.
Broadly stated, the trust deed contained the following provisions.
First, the trustees after excluding the tax and Maramath expenses.
shall during the lifetime of the settlor pay him entire income for the purpose of discharging the debt of Rs. 3000/ mentioned in the deed of partition and for the maintenance of the settlor during his lifetime.
Secondly, after the death of the settlor the balance of the debt that might be found due on the date after excluding the payments made by the settlor is to be paid to the creditors.
Thirdly after the settlor 's lifetime a sum of Rs. 10/ per pension would be paid out of the income to the settlor 's daughter in law, namely, the appellant 's grand mother, viz., father 's mother "for her lifetime, for her charity expenses".
Fourthly, after the lifetime of the appellant 's grand mother the trustees are to pay a sum of Rs. I0/ per mensem permanently to the appellant 's adoptive father who was the adopted son of the 301 appellant 's: grand mother and or the settlor 's predeceased son and after the lifetime of the appellant 's adoptive father "to his male descendants hereditarily".
Fifthly, the settlor gave full power to the trustees after meeting the expenses of the Utsavam to be celebrated in Nungambakkam Devesthanams and the trust expenses and the tax and maramath expenses to expand such sum as they might deem proper to maintain and educate the male descendants o.f the settlor 's predeceased adopted son.
The settlor further provided that if the trustees were not willing they would stop, such maintenance and education expenses.
Sixthly, the trustees after the lifetime of the settlor would spend from and out of the aforesaid trust income in such manner as they might deem proper and have the Vasantha Utsavam celebrated for a period of not less than three days during the Vasantha Utsavam which would be celebrated every year in the Temples of Sri Agastheeswarar and Venkatesa Perumal installed by the settlor 's ancestors and ensrined in Nungambakkam.
Finally, after the lifetime of the settlor the trustees were directed to accumulate the amout remaining out of the income from the property after excluding the assessment, quit rent and maramath and the monthly and annual expenses and purchase properties therewith and provide the same as income for the aforesaid charity.
In the background of these provisions counsel for the appellant contended that the dominant intention was a provision by way o.f a settlement for the members of the family and that the charities were subsidiary purposes to, the said deed of trust.
The provisions or direction to the trustees first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to.
purchase properties therewith were to provide income only for the aforesaid charity.
The words "for the aforesaid charity '" are of important significance.
The entire accumulation was for the charity.
The provisions regarding maintenance and education were subordinate to the provision for meeting the expenses of the Utsavam.
The matter does not rest there.
The provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same if the trustees were not willing.
This power of trustees to stop maintenance and education expenses is ' a complete negation of the appellant 's contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement.
The reason is obvious.
The dominant object is never allowed by the settlor to be repelled by a discretion conferred on the trustees to stop such expenses.
This power to stop is consistent with the intention of the settlor to treat the education and maintenance expenses as secondary objects only after the primary purpose of the trust, namely, charities are fulfilled.
The tenor 302 of the document points to.
the inescapable conclusion that the predominant and overwhelming intention of the settlor was to benefit the charities and provide for the same not only by making the expenses for the charities as.
the first and foremost direction but also by providing for accumulation of income and purchase of properties out of the said accumulated income only for the purpose of charities.
A contention was raised by the appellant that the High Court should not have reversed the finding of the trial Court for the payment of maintenance of the appellant at Rs.50/ per mensem.
The High Court came to the conclusion that there was No. legal principle to.
sustain this increase in maintenance.
In this Court the contention which was raised in the High Court was repeated, viz., that this was a case where the cy pres doctrine would apply.
The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the Court applies the property cy pres, viz., to some other charities as nearly as possible, resembling the original trust.
In the present case, the maintenance and education expenses are neither charitable trusts nor similar objects of charity.
For these reasons, the appeal fails and is dismissed with costs.
The appellant will pay the court fees.

summary/full:
The great grandfather of the appellant executed a trust deed in respect of certain properties.
The trustees were enjoined to.
apply the income of the trust towards charities as also for the benefit of the settlor and his family and descendants.
The appellant filed a suit to enforce his rights under the trust and the trial court granted him maintenance to the extent of Rs. 50/ per mensem out of the trust properties instead of the sum of Rs. 10/. allowed under the trust deed.
In appeal, however, the High Court dismissed the appellant 's suit and reversed the order of the trial court granting him the said increased maintenance.
In this Court The contentions of the appellant which fell for consideration were: (i) whether the dominant purpose of the trust was the maintenance of the settlor 's family, the grant to.
the charities being only secondary; (ii) whether the cy pres doctrine applied to the case, justifying the payment of maintenance money as decreed by the trial court to the appellant.
HELD: (i) The provisions in the deed of trust and the direction to the trustees, first to accumulate the income after meeting the expenses of assessment, quit rent and maramath and the monthly and annual expenses and secondly to purchase properties therewith were to provide income only for the aforesaid charity.
The words "for the aforesaid charity" were of important significance.
The entire accumulation was for charity.
The provisions regarding maintenance and education were subordinate to the provisions for meeting the expenses of the Utsavam to be celebrated in the specified Devasthanams.
[303 E F] Further the provisions regarding maintenance and education were to be at the sole discretion of the trustees who could stop the same.
This power of the trustees was a complete negation of the appellanT 's contention that the intention of the settlor was that education and maintenance expenses were the dominant purpose of the settlement.
The settlor could never have allowed his dominant intention to be repelled by a discretion conferred on the trustees to stop such expenses.
[303 G H] The tenor of the document thus pointed to the inescapable conclusion that the predominant and over whelming intention of/he settlor was to benefit the charities and provide for the same.
[304 A] (ii) The cy pres doctrine applies where a charitable trust is initially impossible or impracticable and the court applies the property cy pres.
viz. to some other charities as nearly as possible.
resembling the original trust.
In the present case, the maintenance and education expenses were neither charitable trust nor similar objects of charity and the High Court therefore rightly interfered with the trial court 's order granting increased maintenance at Rs. 50/ per mensem to the appellant.
[304 C D]


judgement:
iminal Appeal No. 193 of 1967.
Appeal by special leave from the judgment and order dated March 7, 1967 of the Bombay High Court, Nagpur Bench in Criminal Revision Application No. 306 of 1966.
271 G.N. Dikshit, S.K. Bisaria appellant.and R.N. Sachthey, for the appellant.
H.R. Khanna and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by Sikri, J.
This Court granted special leave to appeal in this case limited to the following two points: (1 ) whether the confiscation of the foodgrains in the house of the appellant was legal; and (2) whether r. 141 (2) of the Defence of India Rules: 1962 is not ultra vires the: Defence of India Act.
The facts relevant to the first point are as follows: Certain shpherds belonging to a wandering tribe were apprehended by the police one night while they were carrying 12 baggages containing juar on the backs of 12 horses.
On being questioned they informed the police that they had purchased all this quantity of juar from the appellant at the rate of 78 paise per kg.
On this information the police raided the houses of the appellant and further found 34 quintals and 63 kgs of juar.
The appellant had two house.s at Janephal and in one house 3 quintals and 48 kgs while in the other house 31 quintals and 18 kgs.
of juar was found, which was seized by the police.
The last declaration of stock which had been given by the appellant was on June 5, 1965.
The appellant was tried and convicted o.n three courts by the Judicial Magistrate, First Class, Mehkar.
He was convicted under r. 125(9), Defence of India Rules, for contravening cl.
4(b) of the Maharashtra Jwar (Restrictions on purchases and sale and control of movement) Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/ , in default further rigorous imprisonment for six months.
He was further convicted for contravening Buldana District Price Control Order, 1965, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/ , in default rigorous imprisonment for six months.
He was also convicted for contravenvening section 3 of the Maharashtra Declaration of Stock Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/ in default further rigorous imprisonment for six months.
The sentences of imprisonment on each count were directed to run concurrently.
The Magistrate further ordered that the maddemal before the Court be confiscated to the Government.
The appellant appealed unsuccessfully to the Sessions Judge.
He then filed a revision before the High Court.
The High Court 272 set aside the conviction and sentence passed on the appellant in respect of contravention of cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964.
But while maintaining the conviction for the other two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower courts sentenced the accused to imprisonment already undergone and fine of Rs. 1,000 on .each of the two.
counts.
The High Court observed: "The order regarding forfeiture of the juar seized from the house of the accused is maintained.
The juar seized from the: house in the occupation of Ratanlal will however be released." The learned counsel contends that the High Court having set aside the conviction and sentence in respect of contravention of cl. 3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964, it was illegal to maintain the order regarding forfeiture of the Juar seized from the house of the appellant because, he says, the Maharashtra Jowar (Restriction .on Purchase and Sale and Control of Movement) Order, 1964, and the Buldana District Juar (Price Control) Order, 1965, did not contain any provision authorising the Court to forfeit the juar, the subject matter of the contravention of these two orders.
Rule 125(9) provides: "(a) If any person contravenes any provision of this rule o.r any order made: under this rule, he shall be Punishable with imprisonment for a term which may extend to three years, or with fine, or with both: Provided (b) If any order made under this rule so provides, any court trying a contravention of the order may direct that any property in respect of which the Court is satisfied that the order has been contravened shall be forfeited to Government." The learned counsel for the State has not been able to point out any provision in the two orders mentioned above containing any provision contemplated in r. 125(9)(b).
The only provision contained in the Maharashtra Jowar (Restriction on Purchase 'and Sale and Control of Movement) Order, 1964, is regarding forfeiture to the Government of packages, coverings or receptacles in which any stocks of jowar are found.
This obviously does not enable the Court to order forfeiture of Juar.
273 The Buldana District Juar (Price Control) Order, 1965, it is true, authorises the Collector to seize stocks but does not enable the Court to.
forfeit the juar.
In the result we hold that the order of the High Court maintaining the order of forfeiture is allegal and liable to be set aside.
On the second point the learned counsel for the appellant contends that r. 141(2) of the Defence of India Rules, 1962, is ultra vires because it lays down a rule of evidence contrary to.
the law contained in section 114 of the Indian Evidence Act.
Rule 141 (2) is in the following terms: "141 (2) If in the course of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance: of these Rules, compliance with sub rule (1 ), or where the order was notified, the notification of the order shall be conclusive proof that he was so.
informed; but a failure to comply with sub rule ( 1 ) (i) shall not preclude proof by other means that he had information of the order, (ii) shall not affect the validity of the order.
Section 3 of the Defence of India Act enables the Central Government, by notification in the Official Gazette, to make such rules as appear to be necessary,.
or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community.
Sub section
(2) mentions various matters on which rules can be made, but this is without prejudice to the generality of the powers conferred by sub section
It seems to us that r. 141 (2) is within the powers conferred by section 3 (1 ) of the.
Defence of India Act.
The .fact that the rule is contrary to an existing act does not matter because section 43 of the Defence of India Act provides that "the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act.
" The section contemplates that the rules may be: inconsistent with existing legislation but by virtue of section 43, if otherwise.
valid, they would have effect notwithstanding that they are inconsistent with existing legislation.
We use the words "if otherwise valid" because the rules must fall within the powers given under section 3 (1).
Section 3 gives very wide powers.
It seems to us that r. 141 (2) falls within section 3 because it is essential 274 to the scheme of the Defence of India Rules.
The Rules must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication.
The learned counsel has not been able to show us any case in which a rule like r. 141(2) has been challenged, much less declared ultra vires, both in England and in India.
In the result the appeal is partly allowed, the order of the High Court maintaining the forfeiture of the seized stock of juar set aside and the rest of the order of the High Court maintained.
Y.P. Appeal partly allowed.

summary/full:
The appellant was convicted and sentenced under r. 125(a) Defence of India Rules for contravening el.
4(b) of the Maharashtra Jwar (Restriction on purchases and sale and control of movement) Order, 1964, for contravening Buldana District Price Control Order, 1965; and for contravening el.
3 of the Maharashtra Foodgrains (Declaration of Stock) (Second) Order, 1964.
The Magistrate further ordered that the maddamal (Juar) before the court be confiscated by the Government.
The .appellant appealed unsuccessfully to the Sessions Judge.
But the High Court set aside the conviction and sentence under el.
3 of the Maharashtra Food Grains (Declaration of Stock) Order, and maintained the other convictions in an appeal to this Court the appellant contended that (i) the High Court having set aside the conviction under el.
3 of the Maharashtra Foodgrains (Declaration of Stocks) (Second) Order, 1964 the order for forfeiture could not be maintained because the Maharashtra Jwar (Restriction on Purchase 'and sale and control of movement) Order,/964, and the Buldana District Jwar (Price Control) Order 1965 did not contain any provision authorising the court to forfeit; and (ii) r. 141(2) of the Defence of India Rules, 1962 was ultra vires because it laid down a rule of evidence contrary to the law contained in section 114 of the Indian Evidence Act.
HELD: (i) The order of forfeiture was illegal.
The only provision contained in the Maharashtra Jwar (Restriction on Purchase and Sale and Control of Movement) Order, 1964, is regarding forfeiture of packages covering or receptacles in which any stocks of juar are found.
This does not enable the Court to order forfeiture of juar.
The Buldana District Juar (Price Control) Order authorises the Collector to seize stocks but does not enable the Court to forfeit juar.
[274 H] (ii) r. 141(2) is within the powers conferred by section 3(1) of the Defence of India Act.
The fact that the rule is contrary to an existing Act does not matter because section 43 of the Defence of India Act provides that "the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act." [275 F G]