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Civil Appeals Nos. 805, 806 and 972 977 of 1973 From the judgment and decree dated the 8th June 1971 and 23rd November 1971 respectively of the High Court of Andhra Pradesh at Hyderabad in Appeal Suit Nos.
766 of 1968, 18 of 1969, 779, 780, 782 to 785 of 1968, respectively.
776 F. section Nariman, J. V. K. Gurunathan, T. V. Narasimhan Murty and A. Subha Rao, for the appellants.
P. Ram Reddy and P. P. Rao, for the respondents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This batch of Appeals Nos. 805, 806 and 972 to 977 of 1973 by certificate from the judgments and decrees of the High Court of Andhra Pradesh in Appeals Nos.
766 of 1968, 18 of 1969, 779 of 1968, 780 of 1968, 782 of 1968, 783 of 1971, 784 of 1968 and 785 of 1968 raise a simple but an interesting question namely, whether for the supplies of rice made by the appellants in January and February, 1964, they are to be paid price according to the rate specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 dated March 23, 1964 or according to the rate specified in the Rice (Andhra Pradesh) Price Control order as it stood in 1963.
The question arises in the following circumstances: The appellants are millers and carry on the business of paddy and rice in the State of Andhra Pradesh.
On July 31, 1959, the Governor of Andhra Pradesh in exercise of the powers conferred on him by section 3 of the (Central Act X of 1955) hereinafter referred to as `the Act ' made an order called the Andhra Pradesh Rice Procurement (Levy) order, 1959 clause 3 of the order required every dealer and every miller to sell to the State Government on requisition served on him by the requisitioning authority at the controlled price (a) 40 percent of the quantity of rice held in stock by him at the commencement of the order and (b) 40 percent of the total quantity of rice purchased by him every day beginning with the commencement of the order.
Clause 2(a) of the order defined "controlled price" as meaning the maximum price fixed under section 3 of the Act for the sale of rice by the Central Government from time to time (emphasis supplied).
On December 19, 1963, the Central Government in exercise of the power conferred on it by section 3 of the Act made an order called the Rice (Andhra Pradesh) Price Control order, 1963, which extended to the districts of Krishna, West Godavari, East Godavari, Guntur, Nizamabad, Warangal and Nellore in the State of Andhra Pradesh.
Clause (2) of the order provided that the maximum prices at which the varieties of rice specified in column (1) of the Schedule to that order were to be sold in wholesale quantities would be as specified in the corresponding entries in column (2) of the said Schedule.
The said Schedule inter alia provided that Akkulu rice would be sold at Rs. 46.89 per quintal.
In compliance with the requisitions served on them by the requisitioning authority of the State of Andhra Pradesh, the appellants sold various quantities of that variety of rice to the Government of that State from January 26, 1964, to February 21, 1964, and were paid at the aforesaid rate of Rs. 46.89 per quintal.
By means of the Rice (Andhra Pradesh) Price Control (Second Amendment) order, 1964, dated March 20, 1964, the Central Government amended sub clause (1) of clause 2 of the Rice (Andhra Pradesh) Price Control order, 1963 and ordained that in the said sub clause for the words "the Schedule ', the words and figures schedule I shall be substituted.
on 777 March 23, 1964, the Central Government issued the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964.
Clause 2 of the order ran thus: 2.
In the Rice (Andhra Pradesh) Price Control order, 1963, in Schedule I, for the varieties of rice and the maximum prices thereafter, the following shall be substituted namely: ____________________________________________________________ Varieties or rice maximum price per quintal.
____________________________________________________________ 1.
Districts other than Nellore . . Akulu . 52 25 . . ____________________________________________________________ On the issue of this order, the appellants made representations to the Government of Andhra Pradesh requesting that for the aforesaid supplies of Akkulu rice made by them from January 26 to February 21, 1964, they should also be paid at the enhanced price of Rs. 52.25 per quintal.
As the representations made by them did not evoke a favourable response, they filed suits in the Court of the Subordinate Judge, Machilipatnam for recovery of the difference between the controlled prices specified in the Rice (Andhra Pradesh) Price Control order, 1963, dated December 19, 1963 and Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964.
The suits filed by them were decreed by that Court.
Aggrieved by these judgments and decrees the State of Andhra Pradesh preferred appeals to the High Court at Hyderabad which were allowed on the ground that is the supplies of rice were made by the appellants before the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, they were entitled only to the price specified in the Schedule to the Rice (Andhra Pradesh) Price Control order, 1963.
Dissatisfied with these judgments and decrees, the appellants applied for certificate under Article 133(1) (a) of the Constitution which was granted to them.
The sole question for determination in these appeals, as already indicated, is whether the appellants were to be paid price for the supplies to rice made by them from January 26, 1964, to February 21, 1964, at the rate of Rs. 46.89 per quintal the rate specified in the Rice (Andhra Pradesh) Price Control order, 1963, dated December 19, 1963 or at the enhanced rate of Rs. 52.25 per quintal as fixed by the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 dated March 23, 1964.
Mr. Nariman appearing on behalf of the appellants has laid great emphasis on the word "substituted" occurring in clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 and has urged that the claim of the appellants cannot be validity ignored Elaborating his submission, counsel has contended that as the prices fixed by the Government are meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, regardless 778 of the dates an which the supplies were made.
We cannot accede to this contention.
It is no doubt true that the literal meaning of the word "substitute" is "to replace ' but the question before us is from which date the substitution or replacement of the new Schedule took effect.
There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect.
It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date.
The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.
(See Mani Gopal Mitra vs The State of Bihar.
The aforesaid sales in the instant cases having been made by the appellants before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, and the property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies were made, the appellants had to be paid only at the controlled price obtaining on the dates the sales were effected and not at the increased price which came into operation subsequently.
This view is in consonance with the provisions of section 3 of the Act and the Andhra Pradesh Rice Procurement (Levy) order, 1959 which clearly indicate that the price payable to the dealers and Millers for the supplies of rice made by them is the control price obtaining on the date when the sale is made.
Similar view is taken in the unreported decision dated April 20, 1962 of this Court in K. Appayya Shambhague and Co. vs The State of Mysore & Anr.
where it was laid down that the order made under section 3(2) (f) of the Act are offers of sale which the person on whom a requisition is served has no option but to accept and that the price that has to be paid is the controlled price fixed by the Government under section 3(2) (c) of the Act on the date when he goods are ascertained or when the property in the goods passes to the buyer.
This decision was followed by the High Court of Andhra Pradesh in The Union of India, represented by the Secretary, Ministry of Food and Agriculture, Government of India, New Delhi vs Kanuri Damodariah & Co. Alluri Venkatanarasiah, where it was held that an order under section 3(2) (f) amounts to an agreement for sale and the price payable for the quantities of rice supplied is a price payable in accordance with the price notified under the provisions of section 3(3) of the Act.
In the instant cases, the sale having been made before the coming into force of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, the appellants cannot justifiably claim the benefit of the increased price specified in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964.
The acceptance of the.
779 contention raised on behalf of the appellants will lead to grave consequences.
It will have the effect of reopening the transactions past and closed and would thus give rise to lots of difficulties.
Mr. Nariman has, in support of his contention, relied on the following passage occurring at p. 394 in Craies on Statute Law (Sixth Edition): "Explanatory and declaratory Acts retrospective Where a Statute is passed for the purpose of supplying an obvious omission in a former statute, or, as Parke J. (afterwards Baron Parke) said in R. V. Dursley ; , 469 "to `explain a former statute," the subsequent statute has relation back to the time when the prior Act was passed.
Thus in Att.
Gen vs Poughtt (1816) 2 Price 381, 392, it appeared that by a Customs Act of 1873 (53 Geo. 3, c. 33) a duty was imposed upon hides of 9s.
, but the Act omitted to state that it was to be 9s.
per cwt., and to remedy this omission another Customs Act 53 Geo.
c. 105) was passed later in the same year.
Between the passing of these two Acts some hides were exported, and it was contended that they were not liable to pay the duty 9s.
per cwt., but Thomson C. B., in giving judgment for the Attorney General, said: "The duty in this instant was in fact imposed by the first Act, but the gross mistakes of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same Act.
" Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable. ' This passage has, in our opinion, no bearing on the question before us in view of the fact that the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 is neither explanatory nor declaratory, as sought to be interpreted by the counsel.
The contention of Mr. Nariman that the controlled prices fixed by the Central Government for sale of rice are seasonal prices not being based upon any cogent material cannot also be accepted.
The High Court was, therefore, right in allowing the aforesaid appeals preferred by the respondent and reversing the judgment and decrees passed by the Subordinate Judge, Machilipatnam.
In the result, the appeal, fail and are dismissed with cost, limited to one set.
M.R. Appeals dismissed.

Output:
Under section 3 of the , the respondent passed the Andhra Pradesh Procurement (Levy) order 1959, requiring every miller and dealer of rice (including the appellants) to sell to the respondent certain specified varieties and quantities of rice at controlled price on requisition being served on him.
Clause 2(a) of the order defined "controlled price" as the maximum price fixed by the Central Government from time to time under section 3 of the Act for the sale of rice.
On December 19, 1963, the Central Government Passed the Rice (Andhra Pradesh) Price Control order 1963, fixing the maximum price of akkulu rice at Rs. 46.89 per quintal.
The appellants sold several quantities of akkulu rice to the respondent from January 26, 1964, to February 21, 1964, and were paid at the controlled rate.
On March 23, 1964 the Central Government issued the Rice (Andhra Pradesh) Price Control (3rd amendment) order 1964, and substituted Rs. 52.28 for Rs. 46.89 as the maximum price per quintal, of akkulu rice.
The appellant 's claim for the benefit of the enhanced price for the earlier sales was rejected by the Government of Andhra Pradesh.
The appellants succeeded before the Subordinate Judge, Machilipatnam in their suits for recovery of the difference between the two controlled prices but lost before the High Court, in appeals preferred by the State of Andhra Pradesh.
It was contended before this Court that the prices fixed by the Government are for the entire season, and the appellants are entitled payment at the amended rates, regardless of the dates when the supplies were made, and that the word "substitute" infers retrospective effect.
Dismissing the appeals, the Court.
^ HELD: In the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date.
Statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.
[778B C] (2) The property in the goods having passed to the Government of Andhra Pradesh on the dates the supplies the made, the appellants had to be paid only at the controlled prices obtaining on the dates the sales were effects and not at the increased price which came into operation subsequently.[778 D] K. Appayya Shanbhague & Co. vs The State of Mysore and Anr.
(Unreported decision S.C. dated 20 4 1962); The Union of India.
represented by the Secretary Ministry of Food & Agriculture, Government of India, New Delhi vs Kanuri Damodariah & Co. Alluri Venkatanarasiah (1968) 1 An.
W.K. 81 and Mani Gopal Mitra vs The State of Bihar (1969) 2 S.C.R. 411, followed.


Input:
Appeals Nos. 170 to 172 of 1959.
Appeals by special leave from the decision dated August 20, 1953/September 3, 1953, and August 30, 36 278 1954, of the Board of Revenue, Bihar at Patna in Reference Cases Nos. 461 and 462 of 1952 and 430 of 4954, respectively.
Veda Vyas and B. P. Maheshwari, for the appellant.
R. C. Prasad, for the Respondent.
April 24.
The Judgment of the Court was delivered by section K. DAS,J.
These three appeals with special leave granted under article 136 of the Constitution have been heard together and this judgment will govern them all.
They raise a common question as to the practice of this Court, which we shall presently state.
But before we do so, we must first set out the facts in so far as it is necessary to state them in order to appreciate the precise nature of the question that has arisen for consideration in these appeals.
The relevant facts are these.
The firm of Messrs. Durga Dutt Chandi Prasad, appellant in these appeals, carried on a business of dealing in several kinds of goods but mostly in raw jute at Sahebganj in Bihar.
It was registered as a dealer under section 4 of the Bihar Sales Tax Act, 1944, with effect from July 1, 1946.
For three periods, commencing from October 1, 1947 and ending on March 31, 1950, it was assessed to sales tax on its turnover of the relevant periods, which consisted inter alia of purchases alleged, to have made on behalf of two other jute mills outside Bihar, namely, the Raigarh Jute Mills and the Bengal Jute Mills, and also of dispatches of jute said to have been made to the dealer 's own firm in Calcutta for sale in Calcutta.
For the assessment period commencing on October 1, 1947 and ending on March 31, 1948 the appellant claimed a deduction of (a) Rs. 6,58,880 5 9 on the ground that the said amount represented purchases made on behalf of the aforesaid two jute mills, and (b) Rs. 1,62,662 13 3 being despatches of jute made to the dealer 's own firm in Calcutta.
Similarly, for the next assessment period commencing on April 1, 1948 and ending on March 31, 1949 the appellant claimed a deduction of certain amounts (the exact amounts being 279 irrelevant for our purpose) on the two grounds mentioned above from the relevant turnover.
The claim of the appellant was that purchases made on behalf of the two jute mills aforesaid and the despatches of jute made to the appellant 's own firm in Calcutta were not `sales ' within the meaning of the Bihar Sales Tax Act, 1947 (hereinafter called the Act).
For the third period of assessment commencing on April 1, 1949 and ending on March 31, 1950 a similar claim was made.
But for this period there was an additional claim with regard to the sale of mustard seed worth Rs. 1,00,513 119 to Messrs. Panna Lal Binjraj for which the appellant claimed a deduction.
On June 7, 1951 the Sales Tax Officer concerned disallowed the claim of the appellant for the first two periods and by an order dated April 17, 1953, the claim for the third period was also disallowed.
The appellant then preferred appeals under the relevant provisions of the Act.
These appeals were heard by the Deputy Commissioner of Commercial Taxes,, Bihar, and were dismissed by him.
Then the appellant filed applications in revision under section 24 of the Act to the Board of Revenue, Bihar.
The Board by its orders dated August 20, 1953, and September 3, 1953, dismissed the petitions of revision relating to the first two periods and by its orders dated April 30, 1954, also dismissed the petition of revision relating to the third period.
Under section 25(1) of the Act the appellant moved the Board to state a case to the High Court of Patna on certain questions of law which, According to the appellant, arose out of the orders passed.
The Board, however, refused to state a case inasmuch as in its opinion no questions of law arose out of the orders passed.
The Board expressed the view that the two questions, namely, (1) whether the despatch of jute outside the State of Bihar was a sale within the meaning of the Act and (2) whether the purchases said to have been made on behalf of the two mills outside Bihar were liable to tax, were both concluded by findings of fact arrived at by the competent authorities on relevant materials in the record and were no longer open to challenge.
The appellant then 280 moved the High Court for requiring the Board to state a case on the questions of law which, according to the appellant, arose out of the orders passed with regard to the first two periods of assessment.
By an order dated November 17, 1954, the High Court dismissed the two applications made to it for requiring the Board to state a case to the High Court with regard to the said two periods.
On a similar application made by the appellant to the High Court with regard to the third period of assessment, the High Court directed the Board of Revenue to state a case on the following question: "Whether the petitioner is entitled to claim a deduction on account of sale of mustard seed to the extent of Rs. 1,00,513 11 9 to Messrs. Panna Lal Binjraj as sales made to a registered dealer under the Schedule to Bihar Finance Act (No. 11) of 1949 read with the Bihar Sales Tax Act (Bihar Act XIX of 1947).
" By an order dated January 21, 1957 the High Court answered the question against the appellant.
The finding of the High Court was thus expressed: "We are satisfied that the petitioner was not entitled to deduction of the amount of the price of mustard seed sold to Messrs. Panna Lal Binjraj for the purpose of manufacture because there is no mention in the certificate of registration granted to Messrs. Panna Lal Binjraj that mustard seed could be sold to them for the purpose of manufacture free of tax.
As the conditions imposed by the proviso to section 5 have not been satisfied in this case, the Sales tax authorities rightly decided that deduction of the price of mustard seed sold to Messrs. Panna Lal Binjraj cannot be granted to the petitioner.
" On February 17,1955, the appellant made an application to this Court for special leave to appeal from the orders of the Board of Revenue passed on the two applications in revision as respects the first two periods.
This Court granted the leave prayed for by an order dated December 23, 1955.
It should be emphasised here that the appellant prayed for and got leave to appeal from the orders of the Board dated 281 August 20, 1953 and September 3, 1953 passed on the two applications in revision.
No application was made for leave to appeal, nor was any leave granted, with regard to the subsequent orders made by the Board refusing to state a case or the orders of the High Court refusing the application of the appellant to direct the Board to state a case.
With regard to the third period of assessment regarding which the High Court had directed the Board to state a case on a particular question of law and had actually answered it, the appellant again made an application for special leave to appeal on April 12, 1955, and this Court granted leave to the appellant by an order dated December 23, 1955, the leave granted being confined to the order of the Board of Revenue dated August 30, 1954, by which the Board decided that no questions of law arose for a reference to the High Court.
Again, the appellant neither asked for nor obtained any leave to appeal from the subsequent orders of the High Court by which the High Court held that only one question of law arose out of the orders passed with regard to the third period of assessment and directed the Board to state a case on that question.
Nor did the appellant move against the judgment and order of the High Court dated January 21, 1957, by which the High Court answered the one question referred to it adversely to the appellant.
On the facts stated above the question which has arisen is whether as a matter of practice of this Court, the appellant is enticed to be heard on merits in the three appeals when special leave was neither asked for nor granted in respect of the subsequent orders of the High Court relating to the assessments in question which have now become final between the parties thereto.
In other words, the question is whether the High Court should be allowed to be by passed in the manner sought to be done by the appellant in these three appeals? The position is quite clear.
With regard to two of the assessment orders the High Court held that no questions of law arose at all; with regard to the third assessment order the High Court held that only one question of law arose and it answered 282 that question against the appellant.
Can the appellant now ignore these orders of the High Court and ask us to consider on merits the orders of the Board of Revenue passed on the two revision applications for the first two periods and the orders of the Board in the reference case holding that no question of law arose out of the assessment order for the third period? This is the question, taken as a preliminary point, which we have to answer in these three appeals.
The question has to be considered with regard to (a) the scope and ambit of article 136 of the Constitution; (b) the practice of this Court; and (c) the question must also be considered in the context of the scheme of the Act under which the assessments were made, appeals and revisions in respect thereof were heard, and the scope and effect of section 25 of the Act under which the Board was asked to refer certain alleged questions of law to the High Court and the High Court was asked to direct the Board to state a case on the questions of law said to arise out of the assessment orders.
It is necessary at this stage to dispose of an initial point taken on behalf of the appellant, before we go to a consideration of the main question.
The point is this.
On behalf of the appellant it has been submitted that leave having been granted by this Court, the preliminary objection taken to the hearing of the appeals should not be entertained now and the appeals should be heard on merits.
We are unable to accept this as correct.
In these cases leave was granted without hearing the respondents, and full materials in the record were not available nor placed before the Court when leave was granted.
In Baldota Brothers vs Libra Mining Works (1) this Court has pointed out that there is no distinction in the scope of the exercise of the power under article 136 at the stage of application for special leave and at the stage when the appeal is finally disposed of, and it is open to the Court to question the propriety of the leave granted even at the time of the hearing of the appeal.
This view is in accord with some of the earlier decisions of this Court to which a reference has been made in Baldota '8 case (1) A.I.R 1961 S.C. 100.
283 (supra).
Therefore, it is open to us to consider now whether leave was properly granted in these appeals and whether the appellant is entitled to be heard on merits consistently with the practice of this Court in similar circumstances.
We proceed now to a consideration of the main question.
As a preface to that discussion it is advisable to refer here to some of the provisions of the Act in order to bring out clearly the scheme and object of the Act.
The charging section is section 4 which says in effect that every dealer whose gross turnover exceeds a particular amount in a year shall be liable to pay tax under the Act on sales taking place in Bihar.
Section 5 lays down the rate of tax.
The assessment section is section 13 which states the various circumstances in which the assessing authority may make the assessment.
Section 24 of the Act provides for an appeal, revision or review of the assessment.
Then come section 25, the scheme of which is analogous to that of section 66 of the Indian Income tax Act, 1922.
Under sub section
(1) of section 25, the dealer or Commissioner who is aggrieved by an order made by the Board under sub section
(4) of section 24 may by application in writing require the Board to refer to the High Court any question of law arising out of such an order; if for reason to be recorded in writing the Board refuses to make such reference, the applicant may under subs.
(2) of section 25 apply to the High Court against such refusal.
If the High Court is not satisfied that such refusal was justified, it may require the Board to state a case and refer it to the High Court.
When a case is referred to the High Court, it decides the question of law raised thereby by a judgment containing the grounds on which the decision is founded.
The Board then disposes of the case according to the decision of the High Court.
This in short is the scheme of section 25.
It is manifest that under this scheme questions of fact ate dealt with by the assessing authorities, subject to appeal and revision; but on questions of law the decision of the High Court is the decision according to which the case has to be disposed of Section 23 of the Act says that save as provided in section 25, no 284 assessment made and no order passed under the Act or the rules made thereunder by the Commissioner or any person appointed under section 3 to assist him shall be called into question in any court and save as provided in section 24, no appeal or application for revision or review shall lie against any such assessment or order.
Clearly enough, sections 23, 24 and 25 of the Act cannot override the provisions of the Constitution, nor affect the power of this Court under article 136 of the Constitution. ' The decision of the High Court under section 25 of the Act is undoubtedly subject to the power of this Court under article 136; so also the deter mination or order of any of the assessing authorities which are tribunals within the meaning of article 136.
That Article reads (omitting what is not relevant for our purpose): "article 136.
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
" The words of the Article are very general and it is stated in express terms that this Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
The question before us is not whether we have the power; undoubtedly, we have the power, but the question is whether in the circumstances under present consideration, it is a proper exercise of discretion to allow the appellant to have resort to the power of this Court under article 136.
That question must be decided on the facts of each case, having regard to the practice of this Court and the limitations which this Court itself has laid down with regard to the exercise of its discretion under article 136.
What are these limitations In Pritam Singh vs The State (1) this Court indicated the nature of these limitations in the following observations: (1) ; 285 "On a careful examination of Article 136 along with the preceding Article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this Article.
By virtue of this Article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases.
The only uniform standard which in our opinion can be laid down in the circumstances is that the Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. . . . . . .
Generally speaking, this Court wilt not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.
" Pritam Singh 's case (1) was a case of criminal appeal, but the same view was reiterated in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal (2), which was an income tax case.
It was there observed: "The limitations, whatever they be, are implicit in the nature and character of the power itself.
It being an exceptional and overriding power, naturally it has to be exercised sparingly and with caution and only in special and extraordinary situations.
Beyond that it is not possible to fetter the exercise of this power by any set formula.or rule.
" We shall deal with this decision in greater detail a little later, when considering the question of the practice of this Court.
It is enough to state here that this Court has uniformly held that there must be exceptional and special circumstances to justify the exercise of the discretion under article 136.
(1) ; 37 (2) ; 286 Are there any such circumstances in the appeals before us? The answer must clearly be in the negative.
Under the scheme of the Act which we had adverted to earlier, it is not open to the appellant to contest now the findings of fact arrived at by the assessing authorities.
As to questions of law the appellant had gone up to the High Court, which held that in respect of two of the assessment orders no ' questions of law.
arose and in respect of the third assessment order, only one question of law arose and this question the High Court answered against the appellant.
As we have pointed out earlier, the decision of the High Court in respect of all the three assessment orders was no doubt subject to an appeal to this Court if this Court gave special leave under article 136.
The appellant did not, however, move this Court for special leave in respect of any of the orders passed by the High Court; those orders have Dow become final and binding on the parties thereto.
What the appellant is seeking to do now is to by pass the High Court by ignoring its orders.
This the appellant cannot be allowed to do.
Far from there being any special cir cumstances in favour of the appellant, there are plenty of circumstances against him.
The appellant is really trying to go behind the orders of the High Court by preferring these appeals directly from the orders of the Board of Revenue, and in one appeal from the orders of the Board refusing to make a reference to the High Court.
The practice of this Court is also against the appellant.
The earliest decision on this point is that of Dhakeswari Cotton Mills Ltd.(1) and learned Counsel for the appellant has relied on it in support of his argument that this Court had in some previous cases interfered with an order of the tribunal in exercise of its power under article 136 even though the assessee had not moved against the order of the High Court.
In Dhakeswari 's case (1) what happened was this.
The assessee having exhausted all his remedies under the Income tax Act, 1922, including that under section 66(2) for the issue of a mandamus to the Tribunal, made an (1) ; 287 application to this Court for special leave to appeal against the order of the tribunal; this Court granted special leave and in the appeal filed in pursuance thereof quashed the order of the Tribunal.
But the decision in Dhakeswari 's case (1) must be read in the light of the special circumstances which existed there.
It was found by this Court that the tribunal had violated certain fundamental rules of just ice in reaching its conclusions, and that the assessee had not had a fair hearing; therefore, it was held that it was a fit case for the exercise of the power under article 136.
The decision proceeded really on the basis that the principles of natural justice had been violated and there was in reality no fair trial.
In the appeals before us no such or similar ground is alleged so as to attract the exercise of our power under article 136.
In Moti Ram V. Commissioner of Income tax (2) the appellant did not make any application under section 66(2) of the Income tax Act, 1922, but obtained special leave of this Court in respect of the order of the Tribunal in the special circumstance that his property was attached and proceeded against for the recovery of the tax.
The question of the propriety of the grant of special leave was not considered, but the appeal was dismissed on merits.
The decision in Jogta Coal Co. Ltd. vs Commissioner of Income tax, West Bengal (3) which is a decision on its own facts, has been open to much debate.
The question which fell for consideration there related to depreciation under section 10(2)(vi) of the Indian Income tax Act, 1922, namely, the amount on which the appellant was entitled to calculate deduction allowance for purposes of depreciation.
The Income tax Officer made an estimate which was accepted by the Appellate Assistant Commissioner.
The matter was taken to the Appellate Tribunal which made its own estimate.
An application under section 66(1) was rejected and an attempt to move the High Court under section 66(2) also proved unsuccessful.
Then, this Court was moved for special leave to appeal from the orders of the (1) [1955]1 S.C R. 941.
(2) [1958]34 I.T.R. 646, (3) [1959]36 I.T.R. 521.
288 Tribunal, and the appeals were brought with special leave granted by this Court.
This Court remitted the case to the Tribunal and directed the latter to refer two questions of law to the High Court under section 66(2).
It is a little difficult to see how on an appeal from the appellate orders of the Tribunal, a direction under section 66(2) could be made.
Perhaps, this fact was not noticed.
In any view, the decision cannot be taken as settling the practice of this Court in favour of the appellant.
In Omar Salay Mohammed Sait vs Commissioner of Income tax, Madras(1) the Tribunal based its findings on suspicions, conjectures or surmises and the principle laid down in Dhakeswari 's case (2) was followed.
The decision in Sardar Baldev Singh vs Commissioner of Income tax, Delhi & Ajmer(1) was also a decision special to its own facts.
There the application to the Tribunal was barred by time in circumstances which were beyond the control of the appellant.
The Tribunal dismissed the application for a reference on the ground of limitation and the High Court had no power to extend the time.
In these circumstances the appellant asked for special leave and condonation of delay.
Special leave was granted by condoning the delay.
More in point is the decision in V. Govindarajulu Mudaliar vs The Commissioner of Income tax, Hyderabad (4) which was concerned with appeals from the decision of the Tribunal by special leave, after an application under section 66(2) had been dismissed by the High Court.
This Court then observed: " We must mention that against the order of the Tribunal the appellant applied for reference to the High Court under section 66(2) of the Indian Income tax Act and the learned Judges of the High Court dismissed that application.
No appeal has been preferred against that at all.
The present appeal is against the decision of the Tribunal itself.
It is no doubt true that this Court has decided in Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, 1955(1) S.C.R. 941, that an appeal (1) [1959]37 I.T.R. 151.
(3) (2) ; (4) A.I.R. 1959 S.C. 248, 289 lies under article 136 of the Constitution of India to this Court against a decision of the Appellate Tribunal under the Indian Income tax Act.
But seeing that in this case the appellant had moved the High Court and a decision has been pronounced adverse to him and this has become final, obviously it would not be open to him to question the correctness of the decision of the Tribunal on grounds which might have been taken in an appeal against the judgment of the High Court." In Messrs Chimmonlall Rameshwarlal vs Commissioner Income tax (Central), Calcutta(1) the facts were these.
Four appeals were filed with special leave granted by this Court under article 136 which were directed against the orders of the Appellate Tribunal refusing to state a case on an application made to it under section 66(1).
No appeals were filed against the orders of the Appellate Tribunal under section 33(4), nor against the orders of the High Court under section 66(2)a position which is similar to the one in the appeal before us relating to the assessment for the third period.
In these circumstances this Court observed: "In the present case the circumstance of very great materiality and significance which stares the appellants in the face is that in regard to this very point there is a considered judgment of the High Court delivered by it on the applications made by the appellants to it under section 66(2) of the Act which came to the conclusion that no question of law arose out of the order of the Tribunal, which judgment stands, not having been appealed against in any manner whatever by the appellants.
The result of our going into these appeals before us on the merits would be either to confirm the judgment which has been pronounced by the High Court or to differ from it.
If we did the former, the appellants would be out of Court; if, however, perchance we came to the contrary conclusion and accepted the latter view, namely, that the High Court was wrong in not granting the applications of the appellants under section 66(2) of the Act there would be two (1) , 290 contrary decisions, one by the High Court and the other by us and we would be in effect, though not by proper procedure to be adopted by the appellants in that behalf, setting aside the judgment of the High Court.
This is an eventuality which we cannot view with equanimity.
It is contrary to all notions of comings of Courts and even though we are a Court which could in certain events set aside and overrule the decisions of the High Court concerned, we cannot by pass the normal procedure which is to be adopted for this purpose and achieve the result indirectly in the manner suggested by the appellants.
We, therefore, think that in the circumstances here it would be inappropriate on our part to enter upon an adjudication of these appeals on merits.
We would, therefore, dismiss these appeals without anything more.
" We think that these observations apply with equal force, here.
A careful examination of the previous decisions of this Court shows that whenever the question was considered, this Court said that save in exceptional and special circumstances such as were found in Dhakeswari 's case (1) or Baldev Singh 's case (2) it would not exercise its power under article 136 in such a way as to by pass the High Court and ignore the latter 's decision, a decision which has become final and binding on the parties thereto, by entertaining appeals directly from the orders of a tribunal.
Such exercise of power would be particularly inadvisable in a case where the result may be a conflict of decisions of two courts of competent jurisdiction, a conflict which is not contemplated by sections 23, 24 and 25 of the Act.
On the contrary, the object of these sections is to avoid a conflict by making the decision of the assessing authorities final on questions of fact subject to appeal, revision or review as provided for by section 24 and the decision of the High Court subject to an appeal to this Court, final on questions of law under section 25 of the Act.
To ignore the decision of the High Court on a question of law would really nullify the statutory provisions of section 25 of the Act.
(1) ; (2) ; 291 It remains now to consider one last argument urged on behalf of the appellant.
Learned Counsel for the appellant has drawn our attention to article 133 of the Constitution and has pointed out that when the High Court refuses a certificate under article 133, it is open to this Court to grant special leave to appeal (and this Court has often granted such special leave) from the main decision of the High Court irrespective of the orders of the High Court refusing such a certificate.
It is argued that the same analogy should apply, and in spite of the orders of the High Court under section 25 of the Act, this Court may and should grant special leave to appeal from the orders of the Tribunal.
We do not think that the analogy is apposite.
Firstly, in dealing with an application under article 133 the High Court merely considers whether a certificate of fitness should be given in respect of its own decision; in such a case it does not itself decide any question of law such as is contemplated by section 25 of the Act.
Secondly, there is no likelihood of any conflict of decisions of the kind referred to earlier arising out of an order under article 133, when special leave is granted to appeal from the main decision of the High Court.
The question of two decisions by two different courts or tribunals does not arise, and none of them is by passed by the grant of such special leave.
Moreover ' as we have said earlier the question is not one of the power of this Court; but the question is what is the proper exercise of discretion in granting special leave under article 136 of the Constitution.
In these appeals we have reached the conclusion, for reasons already stated, that the appellant is not entitled to ask us to exercise our power under article 136.
There are no special circumstances justifying the exercise of such power; on the contrary the circumstances are such that it would be wrong both on principle and authority to allow the appellant to by pass the High Court by ignoring its orders.
In our view, special leave was not properly given in these cases and we would accordingly dismiss the appeals with costs, without going into merits.
There will be one hearing fee.
Appeals dismissed.

Output:
The appellant firm was assessed to sales tax under the pro visions of the Bihar Sales Tax, 1944, for three periods commencing from October 1, 1947, and ending on March 31, 1050.
Its claim for certain deductions was disallowed, and its applications in revision under section 24 Of the Act to the Board of Revenue, Bihar, were dismissed by three orders dated August 20, 1953, September 3, 1953 and April 30, 1954.
Under section 25(1) of the Act the appellant applied to the Board to state a case to the High Court of Patna on certain questions of law, but the applications were dismissed by order dated August 30, 1954, on the ground that no questions of law arose.
The appellant then moved the High Court for requiring the Board to state a case on the said questions of law.
The High Court dismissed the applications in respect of the first two periods of assessment, but by order dated November 17, 1934, directed the Board to state a 277 case in regard to the third period on one of the questions of law which only, in its opinion, arose.
By its judgment dated January 21, 1957, the High Court answered the question against the appellant.
On February 17, 1955, the appellant made applications to the Supreme Court for special leave to appeal against the orders of the Board of Revenue dated August 20, 953, and September 3, 1953, in respect of the first two periods; and on April 12, 1955, it similarly applied for special leave in respect of the third period.
Leave was granted in respect of all the three applications by order dated December 23, 1955, the leave granted in regard to the third period being confined to the order of the Board dated August 30, 1954.
When the appeals came up for hearing the question was raised as to whether the appeals were maintainable in view of the fact that no applications for leave to appeal were filed against the orders of the Board of Revenue and the High Court subsequent to the orders of the Board in respect of which only special leave had been granted.
Held, that though the words of article 136 of the Constitution of India are wide, the Supreme Court has uniformly held as a rule of practice that there must be exceptional and special circumstances to justify the exercise of the discretion under that Article.
Pritam Singh vs The State, ; , V. Govinda rajulu Mudaliar vs The Commissioner of Income tax, Hyderabad, A.I.R. 1959 S.C. 248 and Messrs Chimmonlall Rameshwarlal vs Commissioner of Income tax (Centyal), Calcutta, , relied on.
Dhakeswari Cotton Mills Ltd. vs Commissioner of Income tax, West Bengal, ; and Baldev Singh vs Commis sioner of Income tax, Delhi and Ajmer, , explained.
Held, further, that in the circumstances of the present case the appellant was not entitled to a grant of special leave against the orders of the Board of Revenue where the result would be to by pass the High Court by ignoring its orders.
Held, also, that though special leave might have been granted on an application made under article 136, the Court is not precluded from coming to a conclusion at the time of the hearing of the appeal that such leave ought not to have been granted.
Baldota Brothers vs Libra Mining Works, A.I.R. 1961 S.C.C. 100, followed.


Input:
ivil Appeal No. 2991 of 1986.
From the Judgment and Order dated 13.1.
1986 of the Madras High Court in Civil Revision Petition No. 3599 of 1983.
Ms. Shyamala Pappu, Ms. Dhaneshwari and R. Vasudevan for the Appellant.
section Srinivasan for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an appeal by special leave from the judgment and order of the High Court on 13th January, 1986 ordering eviction under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called the Act.
This is an appeal by the tenant.
A room in the front portion of the building had been leased out to the tenant for non residential purposes.
The landlord resides in the other portion.
The landlord needed additional accommodation for residential purposes due to marriages in the family.
Was the portion let out as such separate and distinct unit for the purpose of Section 10(3)(c) of the Act? It was not and as such the landlord was entitled to seek eviction of the tenant under section 10(3)(c) of the Act.
It has been so held clearly by this Court in Shri Balaganesan Metals vs
M.N. Shanmugham Chetty and Ors., [1987] 2 1148 SCC 707 wherein the section has been analysed and explained.
Ms. Shyamala Pappu, learned counsel for the appellant sub mits that the decision needs reconsideration as the residen tial and the nonresidential part of the building covered as separate units and the requirements of the two separate parts have not been properly assessed therein.
We are unable to accept this criticism.
A building may consist of separate parts if the context so warrants.
In the instant case as in Shri Balaganesan Metal 's case the context and the user did not warrant treatment of the portion let out for non resi dential user either as a separate or distinct unit.
It was only a small part of the residential building and not a separate part.
It was secondly submitted that the expression "as the case may be", in the section has not been properly appreci ated.
We are unable to agree.
The difference between resi dential part and the nonresidential has been borne in mind by my learned brother in the judgment aforesaid.
Justice Morris in Bluston & Bramley Ltd. vs Leigh (Euler and Another, Third Parties), [1950] 2 A.E.R. page 29 at page 35 explained that the phrase "as the case may be" meant in the events that have happened.
Our attention was also drawn to the expression "as the case may be" as appearing in the Words and Phrases Permanent Edition 4 Page No. 596.
The meaning of the expression "as the case may be" is what the expression says, i.e., as the situation may be, in other words in case there are separate and distinct units then concept of need will apply accordingly.
Where, however, there is no such separate and distinct unit, it has no significance.
There is no magic in that expression.
The expression "as the case may be" has been properly construed in the judgment mentioned hereinbefore.
It was lastly contended that comparative hardship in the instant appeal has not been properly considered.
It appears that there is nothing in this point.
The appellant is an affluent businessman and it is not difficult for him to get alternative accommodation.
On the other hand, the respond ents have no other residential house than the one in ques tion will find it extremely difficult to get residential accommodation in the same locality and as such they will be put to immense hardship if they are not allowed to occupy the additional portion in their house which has been leased out to the tenant.
The Court has observed that there is no question of balance of convenience.
In that view of the matter this appeal must fail and is, therefore, dismissed.
There will, however, be no order as to costs.
P.S.S. Appeal dismissed.

Output:
The appellant was sought to be evicted under section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 from a room leased out to him for non residential purposes in a residential building.
The landlord needed additional accommodation for residential purposes due to marriages in the family.
The High Court ordered eviction.
In the appeal by special leave, it was contended for the appellant that the portion let out to him was a separate and distinct unit for the purposes of section 10(3)(c) of the Act, that the expression 'as the case may be ' in the section has not been properly construed, and that the requirement and comparative hardship of the parties were not properly appre ciated.
Dismissing the appeal the Court, HELD: 1.
A building may consist of separate parts if the context so warrants.
In the instant case, the context and the user did not warrant treatment of the portion let out for non residential user either as a separate or distinct unit.
It was only a small part of the residential building and not a separate part.
The landlord was, therefore, enti tled to seek eviction of the tenant.
[1148B] Shri Balaganesan Metals vs
M.N. Shanmugham Chetty & Ors., ; , referred to.
The meaning of the expression 'as the case may be ' in 1147 section 10(3)(c) is what the expression says, i.e., as the situa tion may be, in other words, in case there are separate and distinct units then concept of need will apply accordingly.
Where, however, there is no such separate and distinct unit, as in the instant case, it has no significance.
[1148E] Bluston & Bramley Ltd. vs Leigh (Euler and Another, Third Parties) [1950] 2 A.E.R. page 29 at page 35, referred to.
The appellant is an affluent businessman and it is not difficult for him to get alternative accommodation.
On the other hand, the respondents who have no other residen tial house than the one in question will find it extremely difficult to get residential accommodation in the same locality and as such they will be put to immense hardship if they are not allowed to occupy the additional portion in their house which has been leased, out to the tenant.
There is no question of balance of convenience.
[1148FG]