Input:
Appeal No. 3908 (NT)/ 1983.
From the Judgment and Order dated 20.11.1979 of the Madras High Court in Tax Case No. 330 of 1976.
A. Raghuvir and Ms. A. Subhashini for the Appellant.
T.A. Ramachandran and Mrs. Janaki Ramachandran for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
This appeal is preferred against the Judgment of the Madras High Court answering the question referred to it in the affirmative i.e., in favour of the assessee and against the Revenue.
The question referred under section 256 (1) of the Income tax Act reads as follows: "Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the total sum of Rs. 22.000 received by the assessee from the Indian Oil Corporation and All India Highway Motor Rally should not be brought to tax?" The assessment year concerned is 1974 75.
The assessee, G.R. Karthikeyan, assessed as an individual, was having income from various sources including salary and business income.
During the accounting year relevant to the said assessment year, he participated in the All India Highway Motor Rally.
He was awarded the first prize of Rs. 20,000 by the Indian Oil Corporation and another Sum of Rs. 2,000 by the All India Highway Motor Rally.
The Rally was organised jointly by the Automobile Association of Eastern India and the Indian Oil Corporation and was supported by several Regional Automobile Associations as well as Federation of Indian Motor Sports Clubs and the Federation of Indian Automobile Associations.
The rally was restricted to private motorcars, the length of the rally route was approximately 6,956 kms.
One could start either from Delhi, Calcutta, Madras or Bombay, proceed anti clock wise and arrive at the starting point.
The rally was designed to test endurance driving and the reliability of the 331 automobiles.
One had to drive his vehicle observing the traffic regulations at different places as also the regulations prescribed by the Rally Committee.
Prizes were awarded on the basis of overall classification.
The method of ascertaining the first prize was based on a system of penalty points for various violations.
The competitor with the least penalty points was adjudged the first prize winner.
On the above basis, the assessee won the first prize and received a total sum of Rs. 22,000.
The Income Tax Officer included the same in the income of the respon dent assessee relying upon the definition of 'income ' in clause (24) of section 2.
On appeal, the Appellate Assistant Commissioner held that inasmuch as the rally was not a race, the amount received cannot be treated as income within the meaning of section 2 (24) (ix).
An appeal preferred by the Revenue was dismissed by the Tribunal.
The Tribunal recorded the following findings: (a)That the said rally was not a race.
It was predominantly a test of skill and endurance as well as of reliability of the vehicle.
(b) That the rally was also not a 'game ' within the meaning of section 2(24) (ix).
(c) That the receipt in question was casual in nature.
It was nevertheless not an income receipt and hence fell outside the provisions of section 10 (3) of the Act.
At the instance of the Revenue, the question aforementioned was stated for the opinion of the Madras High Court.
The High Court held in favour of the assessee on the following reasoning: (a) The expression 'winnings ' occuring at the inception of sub clause (ix) in section 2(24) is distinct and different from the expression 'winning '.
The expression 'winnings ' has acquired a connotation of its own.
It means money won by gambling or betting.
The expression 'winnings ' controls the meaning of several expressions occurring in the sub clause.
In this view of the matter, the sub clause cannot take in the receipt concerned herein which was received by the assessee by participating in a race which involved skill in driving the vehicle.
The rally was not a race.
In other words the said receipt does not represent 'winnings '.
(b) A perusal of the memorandum explaining the provisions of the Finance Bill,.
1 972, which inserted the said sub clause in section 2(24), also shows that the idea behind the sub clause was to rope in windfalls from lotteries, races and card games etc.
332 (c) Section 74 (A) which too was introduced by the Finance Act, 1972 supports the said view.
Section 74 (A) provides that any loss resulting from any of the sources mentioned therein can be set off against the income received from that source alone.
The sources referred to in the said section are the very same sources mentioned in sub clause (ix) of section 2(24) namely lotteries, crossword puzzles, races including horse races, card games etc.
The correctness of the view taken by the High Court is questioned herein.
The definition of 'income ' in section 2(24) is an inclusive definition.
The Parliament has been adding to the definition by adding sub clause (s) from time to time.
Sub clause (ix) which was inserted by the Finance Act, 1972 reads as follows: "(ix) any winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or from gambling or betting of any form or nature whatsoever;" We may notice at this stage a provision in section IO.
Section 10 occurs in chapter HI which carries the heading "Incomes which do not form part of total income".
Section 10 in so far as is relevant reads thus: " 10, Incomes not included in total income: In computing the total income of a previous year of any person, any income failing within any of the following clauses shall not be included: (d) any receipts which are of a casual and non recurring nature, not being winnings from lotteries, to the extent such receipts do not exceed one thousand rupees in the aggregate".
(The clause has been amended by Finance Act, 1986 but we are not concerned with it.
Similarly it is not necessary to notice the proviso to the said clause.) It is not easy to define income.
The definition in the Act is an inclusive one.
As said by Lord Wright in Kamakshya Narayan Singh vs C.I.T. P. C. "income. . . is a word difficult and perhaps impossible to define in any precise general formula.
It is a word of the broadest connotation".
In Gopal Saran Narain Singh vs Commissioner of Income Tax 3.I.T.R. 237 P.C., the Privy Council pointed out that "anything than can properly be described as income is taxable under the Act unless expressly exempted." This Court had to deal with the ambit of the expression 'income 'in Navin Chandra Mafatlal vs C.I T.Bombay 26 I.T.R. (S.C.) 333 The Indian Income tax and Excess Profits Tax (Amendment) Act, 1947 had inserted section 12 (B) in the Indian Income tax Act, 1922.
Section 12(B) imposed a tax on capital gains.
The validity of the said Amendment was questioned on the ground that tax on capital gains is not a tax on 'income 'within the meaning of entry 54 of list 1, nor is it a tax on the capital value of the assets of individuals and companies within the meaning of entry 55, of list 1 of the seventh schedule to the Government of India Act, 1935.
The Bombay High Court repelled the attack.
The matter was brought to this Court.
After rejecting the argument on behalf of the assessee that the word 'income ' has acquired, by legislative practice, a restricted meaning and after affirming that the entries in the seventh schedule should receive the most liberal construction the Court observed thus: "What.
then, is the ordinary, natural and grammatical meaning of the word "income"? According to the dictionary it means "a thing that comes in." (See Oxford Dictionary, Vol.
V,p. 162; Stroud, vol.
II, pp.
14 16).
In the United States of America and, in Australia both of which also are English speaking countries the word "income is understood in a wide sense so as to include a capital gain.
Reference may be made to 'Eisner vs Macomber '; , ; 'Merchants ' Loan and Trust Co. vs 'Smietanka '[1920] ; ( L) and 'United States of America vs Stewart ', ; and 'Resch vs Federal Commissioner of Taxation '; , In each of these cases very wide meaning was ascribed to the word "income" as its natural meaning.
The relevant observations of learned Judges deciding those cases which have been quoted in the judgment of Tendolkar J. quite clearly indicate that such wide meaning was put upon the word "income" not because of any particular legislative practice either in the United States or in the Commonwealth of Australia but because such was the normal concept and connotation of the ordinary English word "income".
Its natural meaning embraces any profit or gain which is actually received.
This is in consonance with the observations of Lord Wright to which reference has already been made.
The argument founded on an assumed legislative practice being thus out of the way, there can be no difficulty in applying its natural and grammatical meaning to the ordinary English word "income '.
As already observed, the word should be given its widest connota 334 tion in view of the fact that it occurs in a legislative head conferring legislative power.
Since the definition of income in section 2(24) is an inclusive one, its ambit, in our opinion, should be the same as that of the word income occurring in entry 82 of list 1 of the Seventh Schedule to the Constitution (corresponding to entry 54 of list 1 of the Seventh Schedule to the Government of India Act).
In Bhagwandas Jain vs Union of India S.C. The challenge was to the validity of section 23(2) of the Act which provided that where the property consists of house in the occupation of the owner for the purpose of his own residence, the annual value of such house shall first be determined in the same manner as if the property had been let and further be reduced by one half of the amount so determined or Rs. 1,800 whichever is less.
The contention of the assessee was that he was not deriving any monetary benefit by residing in his own house and, therefore, no tax can be levied on him on the ground that he is deriving income from that house.
It was contended that the word income means realisation of monetary benefit and that in the absence of any such realisation by the assessee, the conclusion of any amount by way of notional income under section 23(2) of the Act in the chargeable income was impermissible and outside the scope of entry 82 of list 1 of the Seventh Schedule to the Constitution.
The said contention was rejected affirming that the expression income is of the widest amplitude and that it includes not merely what is received or what comes in by exploiting the use of the property but also that which can be converted into income.
Sub clause (ix) of section 2(24) refers to lotteries, crossword puzzles, races including horse races, card games, other games of any sort and gambling or ' betting of any form or nature whatsoever.
All crossword puzzles are not of a gambling nature.
Some are; some are not.
See State of Bombay vs R.M.D. Chamarbaugwala A.I.R. 1957 S.C.699.Even in card games there are some games which are games of skill without an element of gamble (See State of Andhra Pradesh vs
K. Satyanarayan[1968] 2 S.C.R. 515.
The words other games of any sort" are of wide amplitude.
Their meaning is not confined to games of a gambling nature alone.
It thus appears that sub clause (ix) is not confined to mere gambling or betting activities.
But, says the High Court, the meaning of all.
the aforesaid words is controlled by the word 'winnings ' occurring at the inception of the subclause.
The High Court says, relying upon certain material, that the expression winnings ' has come to acquire a particular meaning viz, receipts from activities of a gambling or betting nature alone.
Assuming that the High Court is right in its interpretation of the expression 'winnings ', does it follow that merely because 335 winnings from gambling/betting activities are included within the ambit of income,the monies received from non gambling and non betting activities are not so included? What is the implication flowing from insertion of clause (ix)? If the monies which are not earned in the true sense of the word constitute income why do moneies earned by skill and toil not constitute income? Would it not look odd.
if one is to say that monies received from games and races of gambling nature represent income but not those received from games and races of non gambling nature? The rally in question was a contest, if not a race.
The respondent assessee entered the contest to win it and to win the first prize.
What he got was a return ' for his skill and endurance.
Then why is it not income which expression must be construed in its widest sense.
Further, even if a receipt does not fall within subclause (ix), or for that matter, any of the sub clauses in section 2(24), it may yet constitute income.
To say otherwise, would mean reading the several clauses in section 2(24) as exhaustive of the meaning of 'income ' when the Statute expressly says that it is inclusive.
It would be a wrong approach to try to place a given receipt under one or the other sub clauses in section 2(24) and if it does not fall under any of the sub clauses, to say that it does not constitute income.
Even if a receipt does not fall within the ambit of any of the sub clauses in section 2(24), it may still be income if it partakes of the nature of the income.
The idea behind providing inclusive definition in section 2(24) is not to limit its meaning but to widen its net.
This Court has repeatedly said that the word 'income ' is of widest amplitude, and that it must be given its natural and grammatical meaning.
Judging from the above standpoint, the receipt concerned herein is also income.
May be it is causal in nature but it is income nevertheless.
That even the casual income is 'income ' is evident from section 10 (3).
Section 10 seeks to exempt certain 'incomes ' from being included in the total income '.
A casual receipt which should mean, in the context, casual income is liable to be included in the total income if it is in excess of Rs. 1,000, by virtue of clause (3) of section 10.
Even though it is a clause exempting a particular receipt/income to a limited extent, it is yet relevant on the meaning of the expression 'income '.
In our respectful opinion, the High Court, having found that the receipt in question does not fall within sub clause (ix) of section 2(24), erred in concluding that it does not constitute income.
The High Court has read the several sub clauses in section 2(24) as exhaustive of the definition of income when in fact it is not so.
In this connection it is relevant to notice the finding of the Tribunal.
It found that the receipt in question was casual in nature but it opined it was nevertheless not an income receipt and fell outside the provision of section 10 (3) of the Act.
We have found it difficult to follow the logic behind the argument.
For the above reasons we hold that the receipt in question herein does 336 constitute 'income ' as defined in clause (24) of section 2 of the Act.
The appeal is accordingly allowed and the question referred by the Tribunal under section 256(1) of the Act is answered in the negative i.e., in favour of the Revenue and against the assessee.
There shall be no order as to costs.
Appeal allowed.

Output:
The assessee participated in an All India Highway Motor Car Rally and on being declared a winner, received an amount of Rs. 22,000 as prize money.
The Income tax officer included the prize money in his income for the relevant assessment year relying upon the definition of 'income 'in clause (24) of Section 2 of Income Tax Act.
On an appeal preferred by the respondent assessee the Appellate Assistant Commissioner held that as the Rally was not a race, the prize money cannot be treated as income within the meaning of section 2(24) (ix).
The Tribunal on an appeal by the Revenue, held that the Rally was not a race and as it was a test of skill and endurance, it was not a 'game ' within the meaning of Sec. 2 (24) (ix).
As the prize money received was casual in nature it fell outside Sec.
10(3) of the Act.
The High Court on a reference at the instance of the Revenue,upholding the findings of the Tribunal,observed that the expression 'winnings ' cannotes money won by betting or gambling and therefore the prize money not represent 'winnings '.
Inasmuch as the amount in question was obtained by participating in a rally which involved skill in driving the vehicle, it held, it cannot he included in the assessee 's income, also because it fell outside the preview of s.10 (3).
Allowing the Appeal, the Court, HELD:1.
The expression 'income ' must be construed in its widest sense.
The definition of 'income ' is an inclusive one.
Even if a receipt does not fall within sub clause (ix) or any of the sub clauses of Sec.2(24) of the Act it may yet constitute income.
Hence the prize money received by the respondent 329 assessee constitutes 'income ' as defined in clause (24) of Section 2 of the Act.
(335 C) 2.The High Court erred in reading several sub clauses in Sec.
2(24) as exhaustive when the statute expressly says that the definition is inclusive.
Even if a receipt does not fall within the ambit of any of the sub clauses in Sec.
2(24) it may still he income if it partakes of the nature of income.
The idea behind providing inclusive definition in Sec.
2(24) is not to limit its meaning but to widen its net.
This Court has repeatedly said that the word 'income ' is of widest amplitude and that it must he given its natural and grammatical meaning.
(335 D) Kamakshya Narayan Singh vs C.LT P.C., Navin Chandra Mafatlal vs C.I.T, Bombay 26 ITR (SC)and Bhagwan Das Jain vs Union of India SC, followed.
Gopal SaranNarain Singh vs Commissioner of Income Tax, 3ITR237 P.C., referred to.
3.If the monies which are not earned in the true sense of the word Constitute income, it is difficult to appreciate why do monies earned by skill and to not constitute income? The Rally was a contest, if not a race.
The Respondent assessee entered the contest to win it.
The Prize money which he got in return for winning the contest was a reward for his skill and endurance.
It does constitute his income which expression must be construed in its widest sense.
(335 B) 4.The sub clause (ix) of Sec.
2(24), is not confined to games of gambling nature alone.
Some of them are games of skill.
State of Bombay vs R.M. D. Chamarbaugwala ; ; and Stale of Andhra Pradesh vs K. Satyanarayan ; , followed.
5.As the definition of income in Sec.
2(24) is an inclusive one, its ambit should be the same as that of the word 'income ' occurring in Entry 82 of list 1 of the Seventh Schedule of the Constitution of India.
(334 B) 6.Even casual income is 'income 'as is evident from Sec.
10(3).
A casual receipt which should mean in the context, casual income is liable to be included in the total income, if it is in excess of Rs. 1,000 by virtue of clause (3) 330 of Sec. 10.
The Tribunal erred in its finding that the prize money fell outside the purview of Sec.
10 (3) inspite of holding that the receipt in question was casual in nature.
(335 E)


Input:
No. 95 of 1964.
Petition under article 32 of the Constitution for enforcement of fundamental rights.
T. N. Subramonia Iyer, Arun B. Saharaya and Sardar Bhadur for the petitioner.
V. P. Gopala Nambiar, Advocate General for the State of Kerala and V. A. Seyid Muhammad, for the respondent.
The Judgment of the Court was delivered by Subba Rao, J.
This is a petition under article 32 of the Constitution for issuing an appropriate writ to quash the order and notification dated October 3, 1963, issued by the respondent and to restrain it from interfering with the petitioner 's right in the property comprised in survey Nos. 646 to 650 in Trivendrum City.
Kizhakke Kottaram (i.e., Eastern Palace), 2 acres and 57 cents.
in extent, comprised in survey Nos. 646 to 650 and consisting of land, trees, buildings, out houses, the surrounding well on all sides, gates and all appurtenant, in the City of Trivendrum originally belonged to His Highness the Maharaja of Travancore, Under a sale deed dated January 7, 1959, the Maharaja sold the same to the petitioner.
The petitioner 's case is that the eastern wall now in dispute is a portion of the Palace wall and is situate in survey Nos. 646 to 650 and that since the purchase he has been in possession of the same.
On October 3, 1963, the Government of Kerala passed an order, G.O. (MS) No. 661/63/Edn., purporting to be under the provisions of the Travancore Ancient Monuments Preservation Regulation 1 of 1112/M.E. ( 193637 A.D.) Under that order the Government considered the Fort walls around the Sree Padmanabhaswamy Temple as of archaeological importance and that they should be preserved as a protected monument.
Under that order the said are described as being situated, among others, in the aforesaid survey numbers also.
Pursuant to that order the State Government issued a notification dated October 3, 1963, declaring the said walls to be a protected monument for the purpose of the said Regulation The petitioner, alleging that the part of the said walls situate in the said.
survey numbers belonged to him and he was in possession thereof and that the said notification infringed his fundamental right under article 19(1) (f) of the Constitution, filed the present writ petition.
870 The State filed a counter affidavit in which it admitted that the Kizhakke Kottaram was purchased by the petitioner from the Maharaja of Travancore, but contended that the wan which bounded the Kizhakke Kottaram on the east was part of the fort wall which had always remained and continued to remain to be the property of the Travancore Cochin, and later on Kerala, Government.
It was further alleged that though the said wan was part of the historic fort wall, the petitioner deliberately "intermeddled" with it.
In short, the respondent claimed that the said wall was part of the historic fort wall and, therefore, the said notification was validly issued in order to preserve the same and that the petitioner had illegally encroached upon it.
It is not necessary to state the different contentions of the parties at this stage, as we shall deal with them separately.
The learned Advocate General of Kerala raised a preliminary objection to the maintainability of the application on the ground that the petition is barred by the principle of res judicata in that a petition for the same relief was filed before the High Court of Kerala and was dismissed.
The petitioner filed O.P. No. 1502 of 1960 in the High Court of Kerala at Emakulam for a relief similar to that now sought in this petition.
The said petition came up before Vaidialingam, J., who dismissed that petition on the ground that it sought for the declaration of title to the property in question, that the said relief was foreign to the scope of the proceedings under article 226 of the Constitution and that claims based on title or possession could be more appropriately investigated in a civil suit.
When an appeal was filed against that order a Division Bench of the High Court, consisting of Raman Nair and Raghavan, JJ., dismissed the same, accepting the view of Vaidialingam, J., that the proper forum for the said relief was a civil Court.
It is, therefore, clear that the Kerala High Court did not go into the merits of the petitioner 's contentions, but dismissed the petition for the reason that the petitioner had an effective remedy by way of a suit.
Every citizen whose fundamental right is infringed by the State has a fundamental right to approach this Court for enforcing his right.
If by a final decision of a competent Court his title to property has been negatived, he ceases to have the fundamental right in respect of that property and, therefore, he can no longer enforce it.
In that context the doctrine of res judicata may be invoked.
But where there is no such decision at all, there is no scope to call in its aid.
We, therefore, reject this contention.
871 The next question is whether the petitioner has any funda mental right in respect of the wall in dispute within the meaning of article 19(1) (f) of the Constitution.
The Sale deed under which the petitioner has purchased the Eastern Palace from the Maharaja is filed along with the petition as Annexure A 2.
Under the said sale deed, dated January 7, 1959, the Maharaja sold the Eastern Palace situate in survey Nos. 646 to 650, 2 acres and 57 cents, in extent, to the petitioner.
The outer compound walls of the said Palace building were also expressly conveyed under the sale deed.
In the schedule of properties annexed to the sale deed the eastern boundary is given as a road.
Prima facie, therefore, the sale deed establishes that the Maharaja conveyed the eastern wall of the building abutting the road to the petitioner.
In the counter affidavit the State, while admitting the title of the Maharaja to the Eastern Palace and the execution of the sale deed by him conveying the said Palace to the petitioner, asserted that the disputed wall is part of the historic Fort wall.
According to the State, Sree Padmanabhaswamy Temple is surrounded by the historic Fort wall and the disputed wall is a part of it.
In support of this contention, the State has given extracts from the Travancore State Manual, the list of forts furnished to the Government by the Chief Engineer in 1886, the history of Travancore by Sri K. P. Sankunni Menon.
, the Memoir of the Survey of Travancore and Cochin States by Lieutenants Ward and Conner, and the Trivendrum District Gazetteer published in 1962.
The said extracts describe the history of the Fort wall.
It is not possible, without further evidence, on the basis of the affidavits filed by the petitioner and the State to come to a definite conclusion whether the disputed part of the wall is a part of the historic Fort wall.
We are, therefore, withholding, our final decision on this point, as we are satisfied that the petitioner has purchased the disputed wall from the Maharaja and is in physical possession thereof.
Indeed, the fact that he is in possession has been admitted by the State in its counter affidavit.
It is stated therein that the petitioner has "intermeddled" with the wall.
The petitioner has possessory title in the wall and is, therefore entitled to be protected against interference with that right without the sanction of law.
The next question is whether the Travancore Ancient Monu ments.
Preservation Regulation (Regulation 1 of 1112/M.E.) ceased to be law in the State of Kerala and, therefore, the said notification issued thereunder had no legal force.
It was contended that Regulation 1 of 1112 M.E. was impliedly repealed by the extension of the Central Act, i.e., the Ancient Monuments Preservation Act, 1904, in the year 1951 to Kerala, as the said Up./65 9 872 Act covered the same field occupied by the State Act, or at any rate the Said Regulation was impliedly repealed by the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of 1951) and the Ancient and Historical Monuments and Archaeological Sites and Remains Act, 1958 (Act XXIV of 1958).
To appreciate this contention it would be convenient at the outset to notice the relevant legislative fields allotted to the Central and State Legislatures by the entries in the three Lists of the Seventh Schedule to the Constitution.
The following are the relevant entries in the said Schedule : Entry 67 of List 1 (Union List) Ancient and historical monuments and records, and archaeological sites and remains, declared by or under law made by Parliament to be of national importance.
Entry 12 of List II (State List) Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance.
Entry 40 of List III (Concurrent List) Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance.
It will be noticed that by reason of the said entries Parliament could only make law with respect to ancient and historical monuments and archaeological sites and remains declared by Parliament to be of national importance.
Where the Parliament has not declared them to be of any national importance, the State Legislature has exclusive power to make law in respect of ancient and historical monuments and records and both Parliament and the State Legislature can make laws subject to the other constitutional provisions in respect of archaeological sites and remains.
Regulation 1 of 1112 M.E. is of the year 1936 A.D.
It was a State law and it is not disputed that it was validly made at the time it was passed.
After the Travancore Cochin State was formed, under the Travancore Cochin Administration and Application of Law Act, 1125 M.E. (Act VI of 1125 M.E.) (1949 A.D), the existing laws of Travancore were extended to that part of the area of the new State which before the appointed day 873 formed the territory of the State of Travancore.
The result was that the said Regulation continued to be in force in the 'Travancore area of the new State.
Ile Part B States (Laws) Act, 1951 (Act No. III of 1951) was made by Parliament; and thereunder the Ancient Monuments Preservation Act, 1904, was extended to the new State of Travancore Cochin.
A comparative study of the two Acts, i.e., the Ancient Monuments Preservation Act, 1904, and the Travancore Ancient Monuments Preservation Regulation 1 of 1112 M.E., shows that they practically covered the same field.
If there was nothing more, it may be contended that the State Act was impliedly repealed by the Central Act.
But section 3 of the Part B States (Laws) Act, 1951, made the application of the Central Act to the State subject to an important condition.
The said section 3 reads : "The Acts and Ordinances specified in the Schedule shall be amended in the manner and to the extent therein specified, and the territorial extent of each of the said Acts and Ordinances shall, as from the appointed day, and in so far as any of the said Acts or Ordinances or any of the provisions contained therein relates to matters with respect to which Parliament has power to make laws, be as stated in the extent clause thereof as so amended." The condition is that the said Act shall relate to matters with respect to which Parliament has power to make laws.
The question, therefore, is whether Parliament can make a law in respect of ancient monuments with respect whereof the State had made the impugned Regulation.
As we have pointed out earlier, the Parliament can make a law in respect of ancient and historical monuments and records declared by or under law made by it to be of national importance, but the Central Act of 1904 did not embody any declaration to that effect.
Therefore, the Central Act could not enter the field occupied by the State Legislature under List II.
If so, it follows that the State Act held the field notwithstanding the fact that the Central Act was extended to the State area.
Nor can the learned counsel for the petitioner call in aid the, Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951 (Act LXXI of 1951), to sustain his argument.
That Act applied to ancient and historical monuments referred to or specified in Part 1 of the Schedule thereto which had been declared to be of national importance.
In Part 1 of the Schedule to the said Act 874 certain monuments in the District of Trichur in the Travancore Cochin State were specified.
The monument in question was not included in the said Schedule.
The result is that the State Act did not in any way come into conflict with the Central Act LXXI of 1951.
The State Act, therefore, survived even after the passing of the said Central Act.
The next Central Act is the Ancient Monuments and Archaeo logical Sites and Remains Act, 1958 (Act XXIV of 1958).
It repealed the Central Act LXXI of 1951.
Under section 3 thereof all ancient and historical monuments declared by Central Act No. LXXI of 1951 to be of national importance should be deemed to be ancient and historical monuments and remained declared to be of national importance for the purpose of the said Act.
Section 4 thereof enabled the Central Government to issue a notice of its intention to declare any other monument to be of national importance which did not come under section 3 of the said Act.
But the Central Government did not give any notice of its intention to declare the monument in question as one of national importance.
If so, that Act also did not replace the State Act in regard to the monument in question.
For the aforesaid reasons it must be held that notwithstanding the extension of the Central Act VII of 1904 to the Travancore area and the passing of Central Acts LXXI of 1951 and XXIV of 1958, the State Act continued to hold the field in respect of the monument in question.
It follows that the notification issued under the State Act was valid.
The next argument of the learned counsel may be briefly stated thus : The disputed wall is not an ancient monument, but an archaeological site or remains; the said matter is covered by entry 40 of the Concurrent List (List 111) of the Seventh Schedule to the Constitution: when Act VII of 1904 was extended by Part B States (Laws) Act III of 1951 to the Travancore area, it occupied practically the entire field covered by the State Act and, therefore, the latter Act was impliedly repealed by the former Act.
Assuming that is the legal position, we find it not possible to hold that the Fort wall is not an ancient monument but only an archaeological site or remains.
The argument of the learned counsel is built upon the definition of "ancient monument" in the State Act (Regulation 1 of 1112 M.E.) and that in the Central Act of 1904.
It is not necessary to express our opinion on the question whether the definition is comprehensive enough to take in an archaeological site or remains, and whether the Acts 875 apply to both ancient monuments strictly so called and to archaeological site or remains.
If the definition was wide enough to cover both on which we do not express any opinion that State Act may be liable to attack on the ground that it, in so far as it deals with archaeological site or remains, was displaced by the Central Act.
But the State Government only purported to notify the Fort wall as an ancient monument and, therefore, if the State Act, in so far as it dealt with monument is good, as we have held it to be, the impugned notification was validly issued thereunder.
The Constitution itself, as we have noticed earlier, maintains a clear distinction between ancient monuments are archaeological site or remains; the former is put in the State List and the latter, in the Concurrent List.
The dictionary meaning of the two expressions also brings out the distinction between the two concepts.
"Monument" is derived from monere, which means to remind, to warn. "Monu ment" means, among others, "a structure surviving from a former period" whereas "archaeology" is the scientific study of the life and culture of ancient peoples.
Archaeological site or remains, therefore, is a site or remains which could be explored in order.
to study the life and culture of the ancient peoples.
The two expressions, therefore, bear different meanings.
Though the demarcating line may be thin in a rare case, the distinction is clear.
The entire record placed before us discloses that the State proceeded on the basis that the Fort wall was a monument; the notification dated October 3, 1963, issued by the State Government described the wall as a protected monument.
The petitioner questioned the notification on the ground that it was not a monument but a part of the boundary wall of his property.
He did not make any allegation in the petition filed in the High Court that it was an archaeological site or remains and, therefore, the Central Act displaced the State Act.
Nor did he argue before the High Court to that effect.
In the petition filed in this Court he questioned the constitutional validity of the State Act only on the ground that the Ancient Monuments Preservation Act, 1904, impliedly repealed the State Act relating to monuments.
He did not allege that the Fort wall was an archaeological site or remains and, therefore, the State Act as well as the notification were invalid.
The present argument is only an afterthought.
The extracts given in the counter affidavit filed by the State from the relevant Manuals and other books and documents show 876 that the Fort wall was a historical monument and was treated as such, being the wall built around the famous Sree Padmanabhaswami Temple.
It is not an archaeological site for exploration and study, but an existing structure surviving from a former period.
For the aforesaid reasons we hold that the Fort wall is a monument and the State Government was within its rights to issue the impugned notification under section 3 of the State Regulation 1 of 1112 M.E.
We are not deciding in this case whether the wall in dispute is part of the Fort wall.
Such and other objections may be raised under the provisions of the Act in the manner prescribed thereunder.
In this view, it is not necessary to express our opinion on the question whether article 363 of the Constitution is a bar to the maintainability of the petition.
In the result, the petition fails and is dismissed with costs.
Petition dismissed.

Output:
By a Notification under the Travancore Ancient Monuments Preservation Regulation (1 of 1112/M.E. 1936 37 A.D.), the State Government declared a fort wall, which was within certain property purchased by the petitioner, to be protected monument for the purposes of the Regulation.
The petitioner challenged the Notification as infringing his fundamental right under article 19(1) (f).
It was contended on behalf of the petitioner that the impugned Notification had no legal force as Regulation 1 of 1112/M.E., though validly made when it was passed, was impliedly repealed by the extension to the State in 1951 of the Ancient Monuments Preservation Act, 1904 (Central Act VII of 1904) as that Act covered the same field occupied by the State Government, and in any event there was an implied repeal of the Regulation by the Central Acts LXXI of 1951 and XXIV of 1958.
It was also contended that the disputed wall was not an ancient 'monument ' but fell within the term 'archaeological sites or remains ' and as the latter subject was in the Concurrent List, upon the extension of the Central Act VII of 1904 in 1951 to the State, the Central Act occupied practically the entire field covered by the State Act and thereby implicitly repealed the State Act.
HELD:By virtue of Entry 67 of the Union List, Parliament could make a law in respect of ancient and historical monuments declared by or under a law made by it to be of national importance, but the Central Act of 1904 did not embody the requisite declaration.
Therefore the Regulation, which fell under Entry 12 of the State List, continued to hold the field despite the extension of the Central Act to the State.
[873 F G] Similarly, the Central Acts LXXI of 1951 and XXIV of 1958 applied only to ancient or historical monuments specified in Part 1 of the Schedule to the 1951 Act or expressly notified by the Central Government under section 4 of the 1958 Act.
As neither of these Acts covered the monument in question, the State Regulation continued to be applicable in respect of it therefore followed hat the Notification issued under the State Act was valid.
[873 H; 874 A E] The contention based on the argument that the disputed wall was not a monument but an archaeological site or remain could not be accepted, because it was clear from the evidence before the court that the Fort wall was not an archaeological site for exploration and study but that it was 869 an existing structure surviving from a former period and, as such, a monument.
The State Government was therefore within its rights in issuing the impugned notification under section 3 of Regulation 1 of 11II 12/ M.E. [875 H; 876 A B]


Input:
Criminal Miscellaneous Petition No. 4248 of 1986 IN Criminal Appeal No. 468 of 1986 From the Judgment and Order dated 24.7.1986 of the Bombay High Court in special Case No. 24 of 1982.
Ram Jethmalani and Miss Rani Jethmalani for the Appellant.
P.P. Rao, R.S. Desai, M.N. Shroff, A.M. Khanwilkar and Bhasme for the Respondents.
The following Order of the Court was delivered: The Special leave was granted by this court in this case in the presence of the learned counsel for the respondents and after hearing submissions.
Today we axe asked to revoke the leave already 92 granted by us.
We have considered the points urged before us in support of the application for revocation.
We do not find any ground to revoke the special leave already granted by us.
Shri Jethmalani learned counsel for the respondents reiterates his request which he had made on the date on which the Special leave was granted, namely that this case should be referred to a Constitution Bench.
Having regard to the various aspects of this case and the points which arise for consideration which.
we have recorded in the form of a note which forms part of this order, we agree with Shri Jethmalani that this case should be referred to a larger bench.
We accordingly direct that this case should be listed for hearing before a bench of 7 Judges of this Court.
Liber ty to mention for early hearing.
The papers may be placed before the Hon 'ble the Chief Justice of India for further directions regarding Constitution of the Bench.
The prayer for vacating the stay is rejected.
NOTE APPENDED A private complaint was first heard by Shri R.B. Sule who had been appointed as a Special Judge under section 6 (1) of the Criminal Law Amendment Act, 1952 by the Govern ment of Maharashtra.
The said Special Judge discharged the accused on the ground that there was no valid sanction to institute the complaint.
The correctness of the said Order of the Special Judge was challanged before this Court by the Complainant in appeal.
That appeal was allowed and the order of discharge passed by the Special Judge was set aside on February 16, 1984.
, The operative part of the judgment of this Court (R. section Nayak vs A.R. Antulay, is found at page 557 of the Report.
It reads thus: "This appeal accordingly succeeds and is allowed.
The 'order and decision of the learned Special Judge Shri R.B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/83 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged.
The accused was the Chief Minister of a premier State the State of Maharashtra.
By a prosecution laun 93 ched as early as on September 11, 1981, his character and integrity came under a cloud.
Nearly 21/2 years have rolled by and the case has not moved an inch further.
An expeditious trial is primarily in the interest of the accused and a mandate of article 21.
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused.
Therefore, special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court.
On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day.
" In this case the following points arise for consideration: 1.
If an order of transfer of a criminal case which purports to violate Article 14 and Article 21 is passed against an accused person by this Court without any pleading or hearing or even consulting his wishes in that regard, can he not question it by an independent petition since a review is not an adequate remedy because the petitioner in a review petition (which by its very nature is of a restricted character) has no right of personal hearing at the stage of admission of the review petition? 2.
Under the Criminal Law Amendment Act, 1952 an offence punishable under section 5 of the Prevention of Corruption Act or under sections 161,162, 163, 164, 165 and 165A of the Indian Penal Code can be tried only by a Special Judge appointed under section 6 of that Act by the State Government.
An order of transfer by this Court cannot be a substitute for an order of appointment to be made by the State Government under section 6 of that Act.
In Gurucharandas Chadha vs State of Rajasthan, ; it is laid down that the trial by a special Judge is the sine qua non of a trial under that Act and a case can be transferred by this Court from one Special Judge to another Special Judge only.
That means that all other courts including the High Court are excluded.
In Bhajahari Mondal vs State of West Bengal; , it is held that the trial 94 by a Judge who is not authorised to try a case amounts to an incurable illegality and the trial would be a nullity.
In view of these decisions can the trial in this case proceed before a High Court Judge who is not a Special Judge? It may be noted that section 7(1) of the Criminal Law Amendment Act, 1952 which opens with a nonobstante clause prevails upon every provision in the Criminal Procedure Code including sections 406 and 407 which deal with the powers of transfer of criminal cases exercisable by the Supreme Court and the High Court respectively and upon every other law in force.
Does not the order of transfer in this case deny the right of the accused to be tried according to the procedure established by law and is not Article 21 violated thereby? 3.
Has the accused in this case a remedy by way of appeal as of right under the Crimi nal Procedure Code? There appears to be a reasonable doubt in this case because section 374(1) of the Code of Criminal Procedure, 1973 provides for an appeal to this Court against a conviction by a High Court under its extraor dinary original criminal jurisdiction.
Clause 24 of the Letters Patent of the Bombay High Court which confers extraordinary original criminal jurisdiction on the High Court refers only to cases brought before the High Court by the Advocate General, any Magistrate or any other officer specially empowered by the Gov ernment in that behalf.
But this case is brought by a private person.
If it fails outside clause 24 of the Letters Patent, the accused will have perhaps a remedy of appeal by way of special leave of this Court under Article 136 of the Constitution.
Denial of even one appeal as of right may amount to violation of Article 14 arid Article 21.
Does not this question require examination? 4.
The Criminal law Amendment Act, 1952 as its preamble says is passed to provide for speedier trial? Does not further speeding up of the case by transferring the case of the High Court for speedy disposal violate the principle laid down by seven learned Judges of this Court in Anwar Ali Sarkar 's case ; and result in violation of Article 14 of the Constitution? The following observa tions of Vivian Bose, J. in Anwar Ali Sarkar 's 95 case at pages 366 367 of the Report are rele vant: "Tested in the light of these considerations, I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad.
When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all.
We find men accused of heinous crimes called upon to answer for their lives and liberties.
We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim.
It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government.
whether the process can be scientifically.
classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large.
It matters not how lofty and laudable the motives are.
The question with which I charge myself is, can fair minded, reasonable, unbiassed and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the condi tions which obtain in India today? I have but one answer to that.
On that short and simple ground I would decide this case and hold the Act bad." (underlining by us) Do not the above observations apply to judicial orders also? If under the American Constitution a prisoner can challange successfully a conviction which has become final on the ground of contraven tion of the Vlth Amendment even after he is sent to jail, by an independent petition, (vide Gideon 's case ; cannot an Indian citizen who had not been heard by this Court on the question of transfer complain by an independent petition before this Court before the commencement of 96 the trial that his fundamental rights under Article 14 and Article 21 are being violated even though he may have a remedy of a re stricted character like a review petition and ask for a writ of prohibition against the trial Judge '? 6.
Does the degree of heinousness of the crime with which an accused is charged or his status or the influence that he commands in society have any bearing on the applicability or the construction of Article 14 or Article 21? 7.
If a decision of this Court is given per incuriam, that is, without taking note of the appropriate legal provisions can that decision be treated as a binding precedent? Is it not a circumstance in jurisprudence which entitles a Court to disregard and earlier judicial precedent? (See Salmond 's Jurisprudence (Eleventh Edn.
P. 203).
We find that even when the accused in this case brought to the notice of this Court (before a Bench presided over by the Judge who delivered the judgment), the accused was not given relief.
He was asked to file a review petition which is restricted in character and where he would have no right of oral heating at the stage of admission or to file any other application which he may be entitled in law to file.
In that situation.
what is wrong in the accused who apprehends that a trial is going on against him contrary to the law and the Constitution without giving him a reasonable opportunity of being heard personally on that question as every other litigant in this Court is given except in review petitions, raising the question before the Judge who is trying him or in an appeal filed before this Court against the order of the Trial Judge? 9.
Could the High Court not have re quested the State Government to appoint a Judge of the High Court as a Special Judge in order to implement the direction of this Court? If this was possible, both the order of transfer passed by this Court and the Criminal Law Amendment Act, 1952 could have been satis fied by the issue of the necessary notifica tion by the Sate Government.
If this 97 was possible, the accused can always raise the objection to the trial of the case before a Judge of the High Court until the notification is issued by the Government appointing him as a Special Judge, without in any way question ing the binding nature of the order of this Court, because while the order of transfer takes care of the territorial jurisdiction of the Trial Judge, a notification issued by the Government would confer the necessary compe tence on the Judge concerned.
It may be noted that in Chadha 's (supra) this Court has made this distinction between the territorial jurisdiction and the competence of the trial court.
There is another point to be considered in this context.
Section 6(2) of the Criminal Law Amendment Act, 1952 says that a person shall not be qualified for appointment as a Special Judge under that Act unless he is or has been a Sessions Judge or an Additional Sessions Judge, or an Assistant Sessions Judge under the Code of Criminal Procedure.
Even if the State Government wishes to appoint a High Court judge as a Special Judge it can only appoint such Judge who has filled any of these offices under the Criminal Procedure Code earlier.
Justice P.S. Shah who is now trying the case was only a member of the Bar before he became a High Court Judge.
In recent times Article 21 is being inter preted liberally and is being extended to issues which were not considered to be within the scope of Article 21.
Does that Article not, therfore, apply with greater force in the case of those persons, i.e., persons accused of criminal offences, for whom that Article was primarily intended? 11.
Question of Judicial discipline: Recently the question of constitutional validity of certain provisions of the Punjab Pre emption Act, 1913 as in force in Haryana came up for consideration before a Division Bench of two Judges (E.S. Venkataramiah and R.B. Misra, JJ)It was noticed by the Division Bench that the said provisions had been upheld by a Constitution Bench in Ram Sarup vs Munshi, ; The Division Bench felt that the decision in Ram Sarup 's case 98 (supra) was erroneous and needed reconsidera tion.
It accordingly admitted the case, issued stay orders and referred the matter to a larger Bench.
Thereupon another Constitution Bench of five Judges accepted the reference, overruled the view of the another Constitution Bench and declared the impunged provisions as unconstitutional.
(See Atam Prakash vs State of Haryana, ; In almost all the cases references to larger Benches are made by smaller Benches where the smaller Benches do not agree with the view of a larger Bench expressed earlier.
It was a smaller Bench which doubted the view in Shankari Prasad 's case ; and in Sajjan Singh 's case [1965] I S.C.R. 938 that referred the case to a larger Bench which decided Golak Nath 's case ; It was again a smaller Bench which did not agree with the decision in Golaknath 's case that referred the case to a larger Bench which decided the Keshvananda Bharati 's case [1973] Supp.
S.C.R. 1 which overruled Golaknath 's case.
In all such cases the smaller Banches had entertained the petitions and passed appropriate interim orders.

Output:
HELD: Having regard to the various aspects of the case and the important points of law which arise for considera tion the petition to revoke the special leave cannot be granted.
Further the special leave, was granted by the Court in the presence of the counsel for the respondents and after hearing his submissions.
The petition has not only culminat ed in criminal appeal but the very same counsel has made a request that the case should be referred to a Constitution Bench ' [92B, 91H]


Input:
Civil Appeal No.1293 of 1969.
Appeal from the Judgment and Order dated the 25th April, 1968 of the Madhya Pradesh High Court in Misc.
Petition No. 404/64.
S.T. Desai, J.B. Dadachanji K.J.John, Mrs. A.K. Varma for the Appellant.
S.K. Gambhir for Respondents 1, 2 and 4.
E.C.Agarwala and R.N. Sachthey for Respondent No. 3.
607 The Judgment of the Court was delivered by SHINGHAL J.
This appeal by a certificate issued by the Madhya Pradesh High Court is directed against its judgment dated April 25, 1968.
The appellant is a company which cultivates sugarcane and manufactures sugar in its factory in Sehore, Madhya Pradesh, by crushing the sugarcane cultivated by it and purchased from other cultivators.
The State Legislature enacted the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1958, hereinafter referred to as the State Act, which came into force on July 1, 1959.
The State Government issued a notification on November 28, 1959, which appeared in the State Gazette dated December 4, 1959, under section 23 of the State Act imposing a cess of 12 paise per maund on the entry of sugarcane during a crushing season in the area comprised within "such of the factories in which the total quantity of cane entering for consumption, use or sale to the factory during such season exceeded 10 lakh maunds".
The appellants challenged the validity of the imposition, and the High Court, on August 31, 1961, held that the notification was illegal as the imposition of the levy was with reference to particular premises.
A similar view was taken in regard to the Acts in some other States and Parliament thereupon enacted the , hereinafter referred to as the Validation Act, which came into force on December 26, 1961.
Section 3 of the Validation Act was taken to validate the imposition and collection of the cess under the State Act.
The Manager of the appellant company received an intimation from the Additional Collector of Sehore dated April 13/15, 1964, stating that a sum of Rs. 5,49,262.92 was due from it on account of cess for the period "1959 60 to December 25, 1961" and asking for a bank guarantee for payment of the balance.
The appellant wrote back saying that the amount of the cane cess worked out to Rs. 5,44,835.69 and not Rs. 5,49,262.92, and that as the collector had not assessed the amount of the cess in accordance with the rules, it was not payable by the appellant.
As the Collector ignored the objection of the appellant, a demand notice was served upon it under section 146 of the Madhya Pradesh Land Revenue Code 1959, asking it to deposit Rs. 5,49,262.92 by August 1, 1964.
Once again the appellant denied its liability, but as that was not acceptable to the Collector, the appellant filed a writ petition in the High Court stating that the Collector 's demand on account of the cess was illegal as the Validation Act was ultra vires the Constitution.
The State of Madhya Pradesh traversed the claim in the writ petition.
The High Court upheld the imposition of the cess but reduced 608 it to Rs. 5,44,835.69, by its impugned judgment dated May 25, 1968, and that is why the Company has come up in appeal to this Court.
It has been argued by Mr. Desai on behalf of the appellant that section 23 of the State Act was not ultra vires the Constitution and there could be no question of validating a valid Act.
According to him, the State Act fell within the scope of Entry 52 of List II of the Seventh Schedule of the Constitution and was valid, and Parliament could not legislate in respect of that occupied field and pass the Validation Act.
These arguments have been based on the main contention that the expression "an area" in Sub section (1) of section 23 of the State Act really means "a local area" within the meaning of the aforesaid Entry 52 and no other area.
Sub section (1) of section 23 of the State Act reads as follows, "23.
Levy of cess on cane. (1) The State Government may, by notification, impose a cess not exceeding 25 paise a maund, on the entry of cane into an area, specified in such notification, for consumption, use or sale therein", There are two provisos to the sub section, but they are not relevant for the purpose of the controversy before us.
It would appear from sub section that it permits the State Government to impose the cess on the entry of sugarcane into any area that may be specified in its notification, and there is nothing in it to confine the imposition to a "local area".
As has been held by this Court in Diamond Sugar Mills Ltd and Another vs State of Uttar Pradesh and Another when a similar point arose for consideration with the U.P. Sugarcane Cess Act, 1956, the proper meaning to be attached to the words "local area" in Entry 52 List II of the Seventh Schedule of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a panchayat or the like".
It has been clearly laid down that the premises of a factory are therefore not a "local area".
This court accordingly struck down section 3 of the U.P. Act empowering the Governor to impose a cess on the entry of sugarcane into the premises of the factory on the ground that it did not fall within Entry 52 of the State List and there was no other Entry in the State List or the Concurrent List in which the Act could fall.
It is therefore futile for the appellant to contend that section 23 of the State Act was not ultra vires the Constitution or that it can be upheld on such a construction of the words "an area" in section 23 as to restrict it to mean a "local area".
609 The decision in Diamond Sugar Mills case came up for consideration in this Court in Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and others with a specific reference to the provisions of the State Act, and it was once again held, following that decision, that the imposition of the cess was outside the legislative competence of the State.
While examining that aspect of the controversy, this Court made it clear that what Parliament had done by enacting section 3 of the Validation Act was not to validate the invalid State Statutes, but to make a law concerning the cess covered by the said Statutes and to provide that the said law shall come into operation retrospectively.
This Court clarified that by virtue of section 3 of the Validation Act, the command under which the cess would be deemed to have been recovered would be the command of the Parliament, because the relevant sections, notification, orders, and rules had been adopted by the Parliamentary Statute itself.
It will thus appear that the argument of Mr. Desai to the contrary is of no consequence.
The other argument of Mr. Desai that the writ of mandamus issued by the High Court on August 31, 1961, quashing the notification dated November 28, 1959, could not be made, and was not in fact made, ineffective by the Validation Act, is also of no consequence.
Section 3 of the Validation Act makes this quite clear for it provides as follows. "3.
Validation of imposition and collection of cesses under State Acts.
Notwithstanding any judgment, decree or order of any Court, all cesses imposed, assessed or collected or purporting to have been imposed, assessed or collected under any State Act before the commencement of this Act shall be deemed to have been validly imposed, assessed or collected in accordance with law, as if the provisions of the State Acts and of all notifications, orders and rules issued or made thereunder, in so far as such provisions relate to the imposition, assessment, collection of such cess had been included in and formed part of this section and this section had been in force at all material times when such cess was imposed, assessed or collected; and accordingly 610 (a) no suit or other proceedings shall be maintained or continued in any Court for the refund of any cess paid under any State Act; (b) no Court shall enforce a decree or order directing the refund of any cess paid under any State Act; and (c) any cess imposed or assessed under any State Act before the commencement of this Act but not collected before such commencement may be recovered (after assessment of the cess where necessary) in the manner provided under that Act.
(2) For the removal of doubts it is hereby declared that nothing in sub section (1) shall be construed as preventing any person (a) from questioning in accordance with the provisions of any State Act and rules made thereunder the assessment of any cess for any period; or (b) from claiming refund of any cess paid by him in excess of the amount due from him under any State Act and the rules made thereunder.
" The section thus specifically validates the notification in question in regard, inter alia, to the imposition of the cess.
The mandamus which was issued by the High Court on August 31, 1961, could not therefore avail the appellant thereafter.
It has lastly been argued by Mr. Desai that when a law provides for the assessment of a cess or tax, it is necessary that it should be done by a specific order to that effect, and that an order of assessment cannot be presumed when it has not really been made.
It has therefore been argued that as an order of assessment was not made in the present case, it could not be presumed or deemed to have been made simply because a demand was raised for the purpose of affecting the recovery of the cess from the apellant.
The charging provision for the levy of the cess is to be found in section 23 of the State Act, to which we shall continue to refer for the sake of convenience even after the passing of the Validation Act.
Sub section (2) of that section provides that the State Government shall make rules specifying the authority empowered to assess and collect the cess and the manner in which it shall be collected.
The Madhya Pradesh Government accordingly made the Madhya Pradesh Sugarcane (Regulation of Supply and Purchase) Rules, 1959, hereinafter referred to as the Rules which were also "validated" by Section 3 of the Validation Act.
Rules 60 of the Rules provides that the col 611 lector shall be the authority empowered to "assess and collect" the cess.
Rule 61 makes it obligatory for the occupier of a factory to maintain a correct account, day to day, in the prescribed form, of the cane entering the area specified in the notification under section 23.
Rule 62 provides further that the occupier of the factory shall submit to the Collector, before the close of each month, a return in the prescribed form, showing the quantity of cane that has entered the specified area during the immediately preceding month.
It further provides that within 15 days of the close of the crushing season, the occupier shall deposit the cess leviable on the total quantity of cane which has entered the specified area during the crushing season and shall send the treasury receipt showing the amount of cess deposited to the Collector.
Then comes rule 63, which places the following responsibility on the Collector, "63.
The Collector shall check the amount of cess deposited by the, occupier of the factory from the returns submitted under rule 62 and see if the full amount of cess due from the occupier has been credited into the Treasury.
If the Collector finds that the full amount of cess due from the occupier of the factory has not been deposited he shall by a written notice call upon the occupier to deposit the amount due from him within the period specified in such a notice and the occupier shall deposit the amount within the period specified.
" The responsibility of the Collector for purposes of assessing and collecting the tax under rule 60 of the Rules is therefore to check the amount of the cess deposited by the occupier of the factory.
The check has to be made with the returns submitted by the occupier, and the Collector has to see that the full amount of the cess has been credited to the treasury.
If he finds that this is not so, it is his duty to call upon the occupier, by a written notice, to deposit the amount due from him within the period specified in the notice.
The State Act and the Rules do not therefore require that the Collector shall make a formal order of assessment, and then collect the cess.
It has to be appreciated that the purpose of an assessment is to compute the amount of the cess payable by the person concerned.
"Assess" is a comprehensive word, and in a taxing statute it often means the computation of the income of the assessee, the determination of the tax payable by him, and the procedure for collecting or recovering the tax.
In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of estab 612 lishing that identity and naming the person from whom the tax has to be recovered.
In the present case there is no controversy regarding the identity of the assessee, and the provision regarding the assessment of the cess in sub section (2) of section 23 of the State Act and rule 60 of the Rules related to the checking of the quantity of cane which had entered the specified area, and the amount of cess deposited in respect of it.
It is for that purpose that form 4 provides the details to be submitted by the occupier of the factory, and a duty is cast on him to deposit the cess leviable on the total quantity of the cane, within 15 days of the close of the crushing season, and to send the receipt evidencing the deposit to the Collector.
As has been pointed out by the High Court, the Appellant 's letter (Ext.
R I) dated May 25, 1964, shows that it admitted that the amount of the cess payable by it worked out to a total of Rs. 5,44,835.69 That was therefore the admitted amount of the cess which had to be recovered.
The Collector recorded an order (exhibit R 2) dated July 21, 1964, in which he clearly stated that he had gone through the case and that the Tehsildar should immediately recover the entire amount of the cess due from the appellant forthwith.
He further directed that the "entire amount of the cane cess due from the B.S.I." should be recovered and monthly progress report sent to him.
This shows that the Collector did apply his mind to the matter, and made an express order for the recovery of the total amount of the cess admitted by the appellant.
It seems that the Naib Tehsildar increased the amount beyond what had been admitted by the appellant and directed by the Collector, but the High Court rightly confined the recovery to Rs. 5,44,835.69 which was admitted by the appellant to be due from it on account of cess for the two seasons.
There is thus no force in the argument of Mr. Desai to the contrary.
The appeal fails and is dismissed with costs.
M.R. Appeal dismissed.

Output:
The appellant company cultivates sugarcane and manufactures sugar in its factory, by crushing the sugar cultivated by it and purchased from other cultivators.
The State Government enacted the M.P. Sugarcane (R.S.P.) Act, 1958 which came into force on July 1, 1959.
The State Government issued a notification under section 23 of the Act imposing a cess of 12 paise per maund on the entry of sugarcane during a crushing season in the area comprised within "such of the factories in which the total quantity of cane entering for consumption, use or sale to the factory during such season exceeded 10 lakh maunds.
" The High Court, on a writ application by the appellants, declared the notification illegal as the imposition of the levy was with reference to particular premises.
The Parliament thereupon enacted the .
Section 3 of the Validation Act was taken to validate the imposition and collection of the cess under the State Act.
In April, 1964, the appellant received an intimation from the Additional Collector stating that a sum of Rs. 5,49,262.92 was due from it as cess for the period 1959 60 to December 25, 1961, and asking for a bank guarantee for payment of the balance.
The appellant replied that the amount of cess worked out only to Rs. 5,44,835.69 and the Collector had not assessed the cess in accordance with the rules.
Its objection was ignored and a demand notice was served on it under s.146 of the M.P. Land Revenue Code, 1959, for Rs. 5,49,262.92.
The appellant filed a writ petition challenging the constitutionality of the Validation Act under which the Collector had demanded the cess.
The High Court upheld the imposition of cess but reduced it to Rs. 5,44,835.69.
It was contended that section 23 of the State Act was not ultra vires the Constitution, as the expression "an area" in section 23(1) means "a local area" within the meaning of Entry 52 of List II, 7th Schedule of the Constitution, and the Parliament could not, therefore, enact an Act validating a valid Act.
It was further contended that when a law provides for the assessment of a cess or tax, it is required to be done by a specific order to that effect, but it was not made in this case.
Dismissing the appeal, the Court, 606 ^ HELD: 1.
Section 23 of the State Act was ultra vires the Constitution, and cannot be upheld on such a construction of the words "an area" in section (1) as to restrict it to mean a "local area".
The proper meaning to be attached to the words "local area" in Entry 52, List II of the Seventh Schedule of the Constitution; (when the area is a part of the State imposing the law) is an area administered by a local body like a Municipality, a district board, a local board, a union board, a panchayat or the like.
The premises of a factory are therefore not a "local area" falling within Entry 52 of the State List, and there is no other Entry in the State List or the Concurrent List in which the Act could fall, [608 E H] Diamond Sugar Mills Ltd. and Anr.
vs State of U.P. & Anr.
; and Jaora Sugar Mills (P) Ltd. vs State of M.P. and Ors.
, ; followed.
What the Parliament had done by enacting section 3 of the Validation Act, was not to validate the invalid State statute, but to make a law concerning the cess covered by the said statute and to provide that the said law shall come into operation retrospectively.
By virtue of section 3, the command under which the cess would be deemed to have been recovered, would be the command of the Parliament, because the relevant sections, notifications, orders and rules had been adopted by the Parliamentary Statute itself.[609 B C] 3.
The State Act and the Rules do not require that the Collector shall make a formal order of assessment, and then collect the cess.
The purpose of an assessment is to compute the amount of the cess payable by the person concerned.
"Assess" is a comprehensive word and in a taxing statute it often means the computation of the income of the assessee, the determination of tax payable by him, and the procedure for collecting or recovering the tax.
In a case where there is a dispute about the identity of the assessee, the order of assessment serves the purpose of establishing that identity and naming the person from whom the tax is to be recovered.
The responsibility of the Collector for purposes of assessing and collecting the tax under section 60 of the Rules, is to see that the full amount of the cess has been credited to the treasury by the occupier of the factory.
If he finds that this is not so, it is his duty to call upon the occupier by a written notice to deposit the amount due from him within the period specified in the notice.
[611E H,612A]