Input:
(Civil) No. 1050 of 1986.
(Under Article 32 of the Constitution of India).
A.C. Gulati, S.K. Goel, S.K. Bansal and L.C. Goyal for the Petitioner.
T.S.K. Iyer, Mariarputham, Ms. A. Mathut, M. Veerappa, Pramod Swarup, K. Ramkumar, R. Bana, A. Subba Rao, S.K. Bhattacharya, Ms Urmila Kapoor and Ms. Janki for the Re spondents.
The Judgment of the Court was delivered by PATHAK, CJ.
On 31 July, 1987, we allowed this writ petition and directed the respondents to admit the petition er, Meenakshi Malik, in one of the three Delhi Medical Colleges in the first year course prescribed for the M.B.B.S. Degree.
We said that the reasons would be pro nounced later.
We proceed to do so now.
The petitioner was born in Delhi on 8 September, 1967.
Her father, Shri O.P. Malik, was employed in the National Council of Educational Research and Training, Sri Aurobindo Marg, New Delhi 860 and her mother, Smt.
Kanta Devi Malik was employed in the Government Girls Senior Secondary School, Mehrauli, New Delhi.
The petitioner attended the Junior Public School, Shakti Nagar, upto Class II and the Cambridge School, Siri niwaspuri, New Delhi, upto Class IX until 19 January, 1982.
The petitioner 's father was placed on deputation in January 1982 with the Government of Nigeria to serve in its Ministry of Education through the Ministry of Home Affairs, Depart ment of Personnel and Administrative Reforms, Government of India, New Delhi.
The petitioner, who was a minor at the time, had to accompany her parents along with her minor brother.
In Nigeria, the petitioner continued her education as an overseas candidate and appeared for the examination conducted by the University of London in Kanduna, Nigeria, and she passed the General Certificate of Education Ordinary level (GCE 'O ' level) which is recognised by the Central Board of Secondary Education, New Delhi, as equivalent to Class XI in India.
On completing the period of his deputation on 8 April, 1984 the petitioner 's father returned to India with his family.
The petitioner was admitted to Class XII in the Delhi Public School, Mathura Road, New Delhi.
The Central Board of Secondary Education permitted her admission to that Class.
The petitioner appeared in the All India Senior School Certificate Examination conducted by the Central Board of Secondary Education, New Delhi, in March, 1985 and passed the examination.
The petitioner then sat for the Entrance Examination for admission to one of the three Medical Colleges in Delhi, and she obtained 750 marks.
The candidates who obtained an equal number of the marks or even less were granted admission, but the petitioner was denied admission.
She fell for consideration in the quota of seven ty per cent of the seats reserved for candidates who had passed the qualifying examination from the University of Delhi or the Central Board of Secondary Education or the Council for the Indian School Certificate Examination from recognised schools conducting regular classes in the Union Territory of Delhi.
But she was denied admission because she had not satisfied the further condition that the last two years of education should be had in a school in Delhi.
Aggrieved by the denial of admission, the petitioner filed the present writ petition.
It seems to us that the qualifying condition that a candidate appearing for the Entrance Examination for admis sion to a Medical College in Delhi should have received the last two years of education in a school in Delhi is unrea sonable when applied in the case of those candidates who were compelled to leave India for a foreign country by 861 reason of the posting of the parent by the Government to such foreign country.
There is no real choice in the matter for such a student, and in many cases the circumstances of the student do not permit her to continue schooling in India.
It is, of course, theoretically possible for a stu dent to be put into a hostel to continue her schooling in Delhi.
But in many cases this may not be feasible and the student must accompany a parent to the foreign country.
It appears to us that the rigour of the condition prescribing that the last two years of education should be received in a school in Delhi should be relaxed, and there should be no insistence on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them.
Rules are intended to be rea sonable, and should take into account the variety of circum stances in which those whom the rules seek to govern find themselves.
We are of opinion that the condition in the prescription of qualifications for admission to a medical college in Delhi providing that the last two years of educa tion should be in a school in Delhi should be construed as not applicable to students who have to leave India with their parents on the parent being posted to a foreign coun try by the Government.
Accordingly, the denial of admission to the petitioner to a seat in one of the Medical Colleges in Delhi must be held to be unreasonable.
It is not disputed that if the condition of schooling for the last two years in a school in Delhi is removed from the way, the petitioner would be entitled to admission in a Medical College in Delhi.
In the circumstances, the petitioner is entitled to an order di recting the respondents to admit her to one of the Medical Colleges in Delhi.
T.N.A. Petition Allowed.

Output:
The petitioner was born and studied upto class IX in Delhi.
In 1982 she left for Nigeria, along with her parents, where her father went on deputation.
There she passed the General Certificate of Education Ordinary Level, conducted by University of London, which was recognised by the Central Board of Secondary Education, New Delhi as equivalent to Class XI in India.
She returned to India along with her family in 1984.
After passing the All India Senior School Certificate Examination in 1985, she appeared for entrance examination for admission to one of the three Medical Colleges in Delhi and passed the test.
But she was denied admission because she had not satisfied the further condition that the last two years of education should be had in a school in Delhi.
Aggrieved by the denial of admission, the petitioner filed a writ petition in this Court.
By an order dated 31st July, 1987 this Court allowed the Writ Petition and directed the respondents to admit her in one of the three Delhi Medical Colleges in the first year course prescribed for the M.B.B.S. Degree.
Giving reasons for the said order, this Court, HELD: 1.
Rules are intended to be reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves.
[861C] 2.
The qualifying condition that a candidate appearing for the 859 entrance examination for admission to a Medical College in Delhi should have received the last two years of education in a school in Delhi is unreasonable when applied in the case of those candidates who were compelled to leave India for a foreign country by reason of the posting of the parent by the Government to such foreign country.
There is no real choice in the matter for such a student, and in many cases the circumstances of the student do not permit her to con tinue schooling in India.
Theoretically it is possible for a student to be put into a hostel to continue her schooling in Delhi but in many cases this may not be feasible and the student must accompany the parent to the foreign country.
[860H, 861A] 3.
The rigour of the condition prescribing that the last two years of education should be, received in a school in Delhi should be relaxed, and there should be no insistence on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them.
Therefore, the denial of admission to the petitioner to a seat in one of the Medical Colleges in Delhi was unreasonable.
[861B, 861E]


Input:
Civil Appeal No. 3702 (NCE) of 1982.
Appeal by Special leave from the judgment and order dated the 2nd August, 1983 of the Allahabad High Court in Election Petition No. 28 of 1980.
24 With Civil Appeal No. 9 of 1983 Appeal by Special leave from the Judgment and Order dated the 15th October/Ist December, 1982 of the Allahabad High Court in Election Petition No. 1 of 1982.
And Civil Appeal No. 10 of 1983 Appeal by Special leave from the Judgment and Order dated the 15th October, 1982 and 1st December, 1982 of the Allahabad High Court in Election Petition No. 1 of 1982.
S.N. Kacker, R.L. Srivastava, Rajesh and V.K. Verma for the Appellants in CA.
No. 3702 of 1982.
Appellant in person in CA.
No. 10 of 1983.
M.C. Bhandare and V.K. Verma for the Appellant in CA.
Yogeshwar Prasad, Ms. R. Chhabra, Sujat Ullah and K.K. Gupta for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI J.
As these appeals involve common points of law, we propose to decide them by one judgment.
Civil Appeal No. 3702 of 1982 This appeal arises out of election to '375 Iglas Assembly Constituency, Aligarh to the Uttar Pradesh Legislative Assembly ' which was held on May 28, 1980 and the result of which was declared on June 1, 1980, in which the appellant was declared elected.
Respondent No. 1, Smt.
Usha Rani had also contested the above mentioned election but was defeated.
Aggrieved by the result of the aforesaid election, Smt.
Usha Rani filed an election petition on 25 July 15, 1980, at the residence of the Registrar of the Allahabad High Court.
Thereafter, on September 24, 1981, the appellant filed a petition before the High Court for rejection of the election petition filed by the respondent, on the ground that the copy of the petition served on him was neither attested to be a true copy nor a correct copy of the original petition, as contemplated by the provisions contained in section 81 (3) of the Representation of the People Act (hereinafter referred to as the 'Act ') and hence the election petition should be rejected in limine under section 86 of the Act.
Sub section
(3) of section 81 may be extracted thus; "81.
Presentation of petitions XX XX XX (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
" An analysis of this sub section would reveal that every election petition should be accompanied by as many copies as there are respondents and that every copy should be attested by the petitioner under his own signature.
If these requirements are not followed strictly and literally, it would result in dismissal of the election petition without any trial as provided by section 86 of the Act.
In the instant case, the main point raised by the appellant was that two sets of copies were filed by the election petitioner in the High Court, one set being a correct and exact one and the other containing vital omissions and mistakes.
This position is not disputed by the respondent (election petitioner).
In reply to the preliminary objection raised by the appellant, the respondent rebutted the charge on the ground that the appellant had got a correct copy as required by section 81 (3) of the Act and, therefore, he could not be heard to complain of any non compliance with the provisions of the aforesaid sub section.
After going through the judgment of the High Court it is not clear whether the appellant received the correct copy of the petition or an incorrect one.
On the other hand, on the evidence and admitted facts the following circumstances appear to be undisputed; 26 (a) that two sets of copies were filed by the election petitioner in the High Court, (b) that one set was correct as required by the Act, and (c) the other set was incorrect as it contained vital omissions and mistakes regarding the details of corrupt practices alleged against the appellant.
There is, however, no clear evidence or finding to show that the copies which were received by the appellant were correct or incorrect and there is some divergence on this point.
The High Court seems to have come to the conclusion that as the respondent had filed correct copies also, she did not violate the provisions of section 81 (3) and it was for the appellant to have chosen the correct copy from the two sets.
The learned Judge of the High Court has also invoked the doctrine of benefit of doubt in order to cure the non compliance of the mandatory provisions of section 81 (3).
On going through the relevant evidence we find that there is overwhelming material to show that the appellant did not receive the correct copy and even the respondent in her evidence did not categorically deny this fact.
The respondent in her evidence before the Court admitted that out of the 22 23 copies filed by her, 10 copies were correct and were duly signed by her and the rest were left with the counsel with instructions to get them corrected.
Therefore, she was not at all sure whether all the copies were corrected or not.
She further admitted that in some of the copies she did not initial the various corrections and that Exts.
R 1, R 2, R 3 and R 4 were not out of those 10 copies which had been filed by her along with the election petition at the residence of the Registrar.
There is, however, clear evidence to show that the copies which were received by the appellant were Exts.
R 1 to R 4, which admittedly were not correct copies of the election petition.
This being the position, it is manifest that the appellant did not receive the correct copies as contemplated by section 81 (3) of the Act.
The respondent has also not been able to prove that the copies served on the appellant were out of the 10 corrected copies which she had signed and filed.
It appears that in view of a large number of copies of the petition having been filed, there was an utter confusion as to which one was correct and which was not.
It is obvious that if an 27 election petitioner files a number of copies, some of which may be correct and some may be incorrect, it is his duty to see that the copy served on the respondent is a correct one.
A perusal of sections 81 (3) and 86 of the Act gives the impression that they do not contemplate filing of incorrect copies at all and if an election petitioner disregards the mandate contained in section 81 (3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86.
It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy.
If out of the copies filed, the respondent 's copy is found to be an incorrect one, it amounts to non compliance of the provisions of section 81 (3) which is sufficient to entail a dismissal of the election petition at the behest.
Hence, the mandate contained in section 81 (3) cannot be equated with section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity.
No such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved.
An election dispute concerns the entire constituency and in a parliamentary democracy it is of paramount importance that duly elected representatives should be available to share the responsibility in the due discharge of their duties.
That is why the law provides time bound disposal of election disputes and holds out a mandate for procedural compliance.
In these circumstances, therefore, in the instant case there was absolutely no justification for the learned Judge to have invoked the doctrine of benefit of doubt.
We are satisfied that it has not been proved by the respondent that she filed correct copies of the election petition or, for that matter the appellant got the correct copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not receive the correct copy.
For these reasons, therefore, the appeal is allowed and the election petition filed by the respondent is dismissed under section 86 of the Act.
There will be no order as to costs.
Civil Appeal Nos. 9 & 10 of 1983 There two connected appeals also involve more or less the same point of law as was involved in Civil Appeal No. 3702 of 1982, with the difference that in Civil Appeal No. 9 of 1983, J.P. Goyal, 28 and in Civil Appeal No. 10 of 1983, Bishamber Nath Pandey, (appellants) were declared elected to the Rajya Sabha on March 29, 1982.
An election petition to set aside their election was filed on May 10, 1982 by the Respondent (Raj Narain) making a number of allegations.
When the case came up before the Court on 5.7.82, an application was made by the respondents for amendment of the original petition by insertion of page 17, which was allowed.
The appellants filed a petition before the Election Judge for rejecting the election petition of the respondents because no amendment could be allowed which would have the effect of defeating or bypassing the provisions of s.81 (3) of the Representation of the People Act (for short, referred to as the 'Act ').
It may be stated here that Shri Bishamber Nath Pandey has in the meantime been appointed as Governor of Orissa and has resigned his membership of the Rajya Sabha, Therefore, as requested at the Bar, his name is deleted from the category of appellants.
The main argument on behalf of the remaining appellants was that 11 copies of the election petition were filed on 10.5.1982 and although the copies which were served on them did contain page 17 yet the original petition did not contain page 17 and was sought to be added only by way of approaching the Court for amendment of the petition.
It was further contended that the Court had no jurisdiction to accede to the prayer for amendment of the petition when at the time of filing the petition, the mandate contained in section 81 (3) was not complied with.
In other words, the position seems to be that while the copies which were served on the appellants did contain page 17 yet the original election petition did not contain page 17.
This being the admitted position, it could not be said that the copies served on the appellants were the correct and exact copies of the election petition.
The provision of section 81 (3) is clear and specific and requires that every copy of the election Petition must be a true and exact copy of the petition.
The learned counsel for the respondent submitted that this is a highly technical objection and did not cause any prejudice to the appellants because so far as their copies were concerned they already contained page 17.
Mr. Bhandare, counsel for the appellants, however, submitted that this is beside the point and does not cure the invalidity of the election petition filed on 10.5.82.
The mandate contained in section 81 (3) enjoins that there should be no difference of 29 any kind whatsoever barring some typographical or insignificant omissions between the petition filed and the copy served on the respondent.
If an entire page is missing in the petition but it is there in the copy served on the respondent, then it is manifest that the copy served was not an exact and true copy of the petition.
The consequences of the mandatory provisions of s.81 (3) could not be got over by praying for an amendment of the election petition because that would defeat the very object and purpose of section 81 (3).
It is not disputed that this discrepancy between the election petition and the copies served on the appellants was undoubtedly there.
In these circumstances, the High Court was wrong and committed a serious error of law in allowing the amendment of the petition.
The High Court should have tried to appreciate the tenor and spirit of the mandate contained in s.81 (3) of the Act.
In the case of Sharif ud Din vs Abdul Gani Lone(1) this Court dismissed the election petition only on the ground that the words "attested to be a true copy" were not signed by the election petitioner and held that this was not a sufficient compliance with the provisions of s.89 (3) of the Jammu & Kashmir Representation of the People Act, which is the same as s.81 (3) of the Act.
In the instant case, the inconsistency is much greater than in Sharif ud Din 's case.
Similarly, in an earlier case of Satya Narain vs Dhuja Ram & Ors(2)., this Court held as follows: "If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated.
We are, therefore, clearly of opinion that the 1st part of section 81 (3) with which we are mainly concerned in this appeal is a peremptory provision and total non compliance with the same will entail dismissal of the election petition under section 86 of the Act".
This view has been consistently taken all through in all the decided cases of this Court so far.
Reliance was, however, placed by the counsel for the respondents on the following observations of Dwivedi, J., in Satya Narain 's case: 30 "Our decision restores that primacy of procedure over justice.
It make s.86 (1) a tyrannical master.
The rigidity of the rule of precedent ties me to its chains.
My only hope now is that Parliament would make a just choice between the social interest in the supply of copies by the election petitioner alongwith his election petition and the social interest in the purity of election by excluding s.81 (3) from the purview of s.86 (1) of the Act.
The aforesaid observations express a pious wish but do not at all detract from what has been decided in this case and with which the learned Judge also agreed.
Despite these observations, the Parliament in its wisdom has not made any attempt to interfere with the peremptive and mandatory provisions of section 81 (3) resulting in the consequence of dismissal of the petition under s.86 of the Act.
For the reasons given above, we allow the appeals, set aside the judgment of the High Court and dismiss the election petitions in limine under s.86 of the Act.
In the circumstances, there will be no order as to costs.
N.V.K. Appeals allowed.

Output:
The respondent filed an Election Petition for setting aside the election of the appellant to the State Legislative Assembly.
The appellant filed a petition for rejection of the said Election Petition in limine under Section 86 of the Representation of the People Act, 1951 on the ground that the copy of the petition served on him was neither attested to be a true copy nor a correct copy of the original petition, as contemplated by the provisions contained in section 81(3).
The case of the respondent election petitioner was that two sets of copies were filed, one set being correct as required by the Act and the other set incorrect containing vital omissions and mistakes, the appellant having got a correct copy as required by section 81(3) there was compliance with the requirement of the section.
The High Court held that as the respondent had filed correct copies, the provisions of section 81(3) were not violated and it was for the appellant to have chosen the correct copy from the two sets and invoked the doctrine of benefit of doubt in order to cure the non compliance of the mandatory provisions of section 81(3), and rejected the application to dismiss the Election Petition.
In the connected appeals, the 1st Respondent had filed separate Election Petitions for setting aside the election of the appellants to the Rajya Sabha.
When the said petitions came up before the High Court for hearing an application was made by the respondent for amendment of the original petition by insertion of page 17 which was allowed.
The appellants filed petitions before the Election judge for rejecting the Election Petition on the ground that no amendment could be allowed which would have the effect of defeating or bypassing the provisions of section 81(3) of the Act, and that the original petition served on the appellants did not contain page 17 and hence was not the correct and exact copy of the election petition.
The High Court rejected the application to dismiss the Election Petition.
Allowing the Appeals.
23 ^ HELD: 1.
The mandate contained in section 81(3) is clear and specific and requires that every copy of the election petition must be a true and exact copy of the petition.
The consequences of this mandatory provision cannot be got over by praying for an amendment of the election petition because that would defeat the very object and purpose of section 81(3).
B] In the instant cases, the judgment of the High Court are set aside, and the election petitions dismissed in limine under section 86 of the Act.
[30 D] Sharif ud Din vs Abdul Gani Lone, ; ; referred to.
Section 81(3) and 86 of the Act do not contemplate the filing of incorrect copies and if an election petitioner disregards the mandate contained in section 81(3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86.
It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy.
If out of the copies filed, the respondent 's copy is found to be an incorrect one, it amounts to non compliance of the provisions of section 81(3) which is sufficient to entail a dismissal of the election petition at the behest of the respondent.
[27 B; C] 3.
If an election petitioner files a number of copies, some of which may be correct and some may be incorrect, it is his duty to see that the copy served on the respondent is a correct one.
[27 A] In the instant case, it has not been proved by the respondent that correct copies of the election petition had been filed or, that the appellant got the correct copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not receive the correct copy.
[27 F] 4.
The mandate contained in Section 81(3) cannot be equated with section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity.
No. such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved.
[27 D] 5.
Parliament in its wisdom has not made any attempt to interfere with the preemptive and mandatory provisions of section 81 (3) resulting in the consequence of dismissal of the petition under section 86 despite the observations in Satya Narain.
vs Dhija Ram & Ors. ; [30 C]


Input:
Appeals Nos. 262 to 265 of 1970.
Appeals by special leave from the judgment and order dated May 1, 1969 of the Allahabad High Court in Sales Tax Reference Nos. 249, 250, 251 and 571 of 1966 and Civil Appeals Nos. 266 and 267 of 1970.
Appeals by special leave from the judgment and order dated January 29, 1969 of the Allahabad High Court in Sales Tax Reference Nos. 604 and 603 of 1965.
H. R. Gokhale, Gobind Das, D. N. Mishra and B. P. Singh, for the appellant (in all the appeals).
C. B. Agarwala and 0.
P. Rana, for the respondent (in all the appeals).
732 The Judgment of the Court was delivered by Hegde, J.
These are connected appeals by special leave.
The only question raised in these appeals is whether 'Sarin Tooth Powder ' manufactured by M/s. Sarin Chemicals Laboratory is "cosmetic" or a "toilet requisite" as held by the High Court of Allahabad or it is an unspecified commodity liable to sales tax at all points of sale as held by the Additional Judge (Revisions) Sales Tax, Agra.
The contention of M/s. Sarin Chemical Laboratory who is the appellant in all the appeals is that the turn over relating to the sales of tooth powder is liable to be taxed at the rate of 3 pies per rupee under section 3 of the U.P. Sales Tax Act (to be hereinafter referred to as the Act) whereas Commissioner of Sales Tax, U.P. contends that the said turn over is liable to be taxed at single point under section 3(A) of that Act read with Entry 6 of the notification No. 905/X dated March 31, 1956.
The High Court has accepted the contention of the Commissioner.
In these appeals the assessee challenges the conclusion reached by the High Court and supports the view taken by the Additional Judge (Revisions) Sales Tax, Agra, who held that the tooth powder is an unspecified commodity liable to tax under section 3 of the Act.
Neither the expression 'cosmetic ' nor 'toilet requisite ' has been defined in the Act.
The dictionary meaning of the expression 'cosmetic ' (see Webster 's international Dictionary) is "A preparation to beautify or alter appearance of the body or for cleansing, coloring, conditioning or protecting skin, 'hair, nails, eyes or teeth".
The same dictionary gives the meaning of the expression "toilet" thus : 'an act or process of dressing, especially formerly of dressing hair and now usually cleansing and grooming of one 's person".
The word "toiletry" is explained in the said dictionary as meaning "an article or preparation used in making one 's toilet such as soap, lotion, cosmetic, tooth paste, shaving cream, cologne etc.
According to the dictionary meaning tooth powder is regarded both as an item of cosmetic and toilet: but as observed by this Court in Bamavatar Budhaiprasad vs The Asstt.
Sales Tax Officer, Akola and another(1), the names of articles, the sales and purchases of which are liable to be taxed given in a statute unless defined in the statute must be construed not in a technical sense but as understood in common parlance.
Therein this Court was called ' upon to consider whether 'betel leaves ' could be considered as 'vegetable ' under item No. 6 of Schedule II of the C. P. Berar Sales Tax Act, 1947.
In that case this Court observed that the word 'vegetable ' had not been defined in the Act and being a word of every day use, (1) 12, section T. C. 286; 733 it must be construed in a popular sense, meaning "that sense which people conversant with the, subject in matter with which statute is dealing would attribute to it.
" Applying that test this Court ruled that betel leaves cannot be considered as 'vegetable '.
In common parlance a tooth powder is considered as a toilet.
That meaning ,accords with the dictionary meaning, as well.
The question whether tooth powder can be considered as a toilet came up before the Madras High Court in V. P. Sanasundara Mudaliar vs State of Madras( ') and before the Bombay High Court in Commissioner of Sales Tax vs Vicco Laboratories(2).
Both the courts took the view that the tooth powder is a toilet.
The same view has been taken by the Allahabad High Court.
We are in agreement with that view In the result these appeals fail and they are dismissed with costs hearing fee one set.
Y.P. Appeals dismissed.
(1) 14.
section T. C. 943.
(2) 22.
section T. C. 169.

Output:
On the question whether tooth powder manufactured by the assessees was "cosmetic" or a "toilet requisite" liable to tax under section 3(A) of the U.P. Sales Tax Act, read with Entry 6 of Notification No. 905/X dated March 31, 1956/or whether it is an unspecified commodity liable to tax under section 3 of the Act, HELD : Tooth powder is a toilet and therefore taxable under section 3(A) of the U.P. Sales Tax Act, read with the Notification.
Neither the expression 'cosmetic, nor 'toilet requisite ' has been defined under the Act.
The names of articles, the sales and purchases of which are liable to be taxed given in a statute, unless defined in the statute, must be construed not in a technical sense but as understood in a common parlance.
In common parlance a tooth powder is considered as a toilet and that meaning accords with the dictionary meaning as well.
[732 E, H] Bamavater Budhaiprasad vs The Asstt.
Sales Tax Officer, Akola and Another, 12, S.T.C. 286, followed.
V. P. Sanasundara Mudaliar vs State of Madras 14, S.T.C. 943; Commissioner of Sales Tax vs Vicco Laboratories, 22 S.T.C. 169, approved.


Input:
Civil Appeal No. 2622 of 1987 From the Judgment and order dated 6.8.1985 of the Bombay High Court in Appeal No. 139 of 1984.
V.S. Desai and A.S. Bhasme for the Appellants.
G.L. Sanghi, D. Chandrachud and Ms. Rainu Walia for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The question raised in this appeal is a somewhat unusual one.
The State Government wants to withdraw proceedings for acquisition of lands initiated by it under the Land Acquisition Act (hereinafter referred to as 'the Act ') by exercising its power under section 48 but the owner of the land is insisting that the Government should be directed to go ahead with the acquisition, taken over the lands and pay him compensation.
The reasons for this some 593 what unusual request will become apparent a little later.
By a notification dated 6th November, 1961, issued under section 4 of the Act, certain lands belonging to the respondent company were notified for acquisition in order to accommodate housing schemes of the Maharashtra Housing Board.
This was followed up, on 18th November, 1965, by a declaration under section 6 of the Act and, on 15th January, 1966, by notices calling upon the respondent to put forward its claims of compensation in respect of the land sought to be acquired.
Thereafter, however, no further proceedings were taken.
In the meantime it appears that the lands were encroached upon by a large number of trespassers who put up slums thereon.
The respondent repeatedly requested the State Government to take steps to remove the encroachments and to expedite the making of the award and payment of compensation but these requests went unheeded.
The respondent thereupon filed Miscellaneous Petition No. 1803/78 in the High Court of Bombay praying, inter alia, for a Writ of Mandamus directing the State Government to make the award under section 11 of the Act and to take possession of the lands after payment of due compensation to the respondent.
On 25th March, 1981, the State Government passed orders withdrawing the lands of the respondent from acquisition under section 48 of the Act.
The respondent was informed of this decision on the 20th of October, 1981 and an affidavit to this effect was also filed in the High Court in reply to the Writ Petition.
Thereupon the respondent company amended its Writ Petition, challenged the withdrawal order as mala fide and included a prayer for quashing the decision of the State Government to withdraw its lands from the acquisition.
This Writ Petition was allowed by a learned Single Judge of the High Court on 9.11.83 and his decision was affirmed by a Division Bench on 6th August, 1985.
The State Government has preferred this appeal.
The contention of the respondent before the High Court was that the State Government had acted mala fide in invoking the power of withdrawal permitted by section 48 in the facts and circumstances of the present case.
It was contended that the purpose for which the lands had been sought to be acquired continued to subsist and that, all along, in the correspondence between the parties the State Government had given no indication that the lands were no longer needed by it for that purpose.
It was urged that the order under section 48 had been passed, after the respondent company filed a writ petition, solely with a view to defeat the relief claimed by the Company in the writ 594 petition and render the same infructuous.
It was submitted that the A respondent had not been able to take steps to remove the encroachments because of the pendency of the proceedings for acquisition inasmuch as under section 24 of the Act any expenditure incurred by the company in this regard could not be taken into account in determining the compensation due to the respondent.
It was pointed out that while the company was helpless in defending itself against the encroachments, the State had ample powers, while taking possession of the lands to remove the trespassers and enforce the surrender of the lands to the Government both under the Land Acquisition Act and the Maharashtra Land Revenue Code.
It was urged that the long delay of about 20 years in taking the step of withdrawal showed mala fides on the part of the Government.
A grievance was also made that no show cause notice had been given to the respondent company before the withdrawal order was passed.
These contentions (except the last one which was left open) were accepted by the High Court.
We are of opinion that the High Court erred in striking down the order under section 48 and compelling the State Government to acquire the lands of the respondent.
Under the scheme of the Act, neither the notification under section 4 nor the declaration under section 6 nor the notice under section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein.
Section 16 makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government.
Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although it may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land.
So long as possession is not taken over, the mere fact of a notification under section 4 nor declaration under section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care of the land and protect it against encroachments.
Again, such a notification does not either confer on the State Govt.
any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safe guard the interests of the original owner of the land.
It is in view of this position, that the owner 's interests remain unaffected until possession is taken, that section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken.
By such withdrawal no irreparable prejudice is caused to the owner of the land, and if at all he has suffered any damage in cor 595 quence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under section 48(2).
In this view of the matter, it does not matter even if there is lapse of considerable time between the original notification and the withdrawal under section 48 as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanodhyaya Trust and others vs State of Gujarat and another.
, AIR 1981 Gujarat 107.
It also follows that the State can be permitted to exercise its power of withdrawal unilaterally and no requirement that the owner of the land should be given an opportunity of being heard before doing so should be read into the provision.
The High Court has taken the view that a decision of withdrawal from acquisition must be backed by reasons and cannot be arbitrary or whimsical.
We may observe that having regard to the scheme of the Act as discussed above, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for a decision not to go ahead with its proposal to acquire a piece of land.
It is well settled in the field of specific performance of contracts that no person will be compelled to acquire a piece of land as any breach of a contract to purchase it can always be compensated for by damages.
That is also the principle of section 48(2).
But this consideration apart, and even assuming that a withdrawal order under section 48 should be backed by reasons and should be bona fide, we are of the opinion that in the present case the order is not vitiated in any manner.
The Government had intended to acquire a vast piece of vacant land for construction of houses by the State Housing Board.
But this land had been over run by slum dwellers to such an extent that it was no longer possible for the Government to effectuate the intended purpose af acquisition.
The High Court 's observations that "the respondents have not stated in their affidavit that the lands in question are unsuitable for the purpose in question" and that "the purpose continues to exist" lose all meaning in the face of the finding recorded by the High Court itself at another place that "the lands of the petitioners today are fully occupied by unauthorised hutments which have come up on these lands, rendering the lands worthless.
" The basic question is really whether the Government can be held responsible for this state of affairs and can be compelled to go ahead with the acquisition though its purpose could not be achieved.
We have already pointed out that the State can not be held responsible for the occupation of the land by trespassers.
It is true that if the Government decides to go ahead with the acquisition and to take possession of the land, it has powers to evict trespassers and to, secure possession of the land but, for this reason alone, they cannot be compelled to go ahead with the acquisition.
In the conditions presently 596 prevailing in major metropolitan cities, such eviction, for the Government, poses more serious difficulties than to a private person like the respondent company and it is common experience that, far from removing such encroachments, Government and municipalities are constrained to "regularise" them and provide them with civic necessities, Enactments like the Slums Act and the Urban Land Ceiling and Regulation Act have further complicated the situation.
Where slum dwellers on a large scale occupy pieces of land, social and human problems of such magnitude arise that it is virtually impossible for municipalities, and no mean task even for the Government, to get the lands vacated.
If the Government is reluctant to go ahead with the acquisition in view of these genuine difficulties, it can hardly be blamed.
We see no justification to direct the Government to acquire the land and embark on such a venture.
We are also of the opinion that the fact that the Government exercised the power of withdrawal after the writ petition was filed does not spell mala fides, once the existence of circumstances, which, in our opinion, justified the Governments decision to withdraw, is acknowledged.
The High Court, in this context, has referred to section 24 of the Act and pointed out that the respondent company could not afford to take steps for the eviction of the slum dwellers as it might incur in this behalf will not be taken into account in determining the compensation payable to it under the Act.
This is not strictly correct for under section 24, it was open to the respondent company to have incurred such expenditure with the sanction of the Collector and claimed reimbursement but the respondent company did not seek the sanction of the Collector in this regard.
That apart, this clause of section 24 is only a provision laying down the rule that the State will, generally speaking, pay for the land only in the condition in which it was on the date of the section 4 notification and that subsequent changes on the land will not be taken into account in the determination of the compensation.
It cannot follow from this provision that the State should be compelled to take over the land because the owner of the land will need to take care of it at his own cost until it vests in the Government.
Far from a decision to withdraw in such cases as the present one, being considered to be mala fide, it could be perhaps said with greater truth that the Government would have been acting mala fide if, despite the clear knowledge that the land could not any longer be used for the purpose for which it had been acquired, it decided to go ahead with the acquisition.
We are emphatically of the view that the State Government has acted in best interests of the public and of public revenues and its decision cannot be faulted.
597 Before we conclude we may point out that somewhat similar questions came up for the decision of this Court in an appeal preferred by the State of Maharashtra, from an order of the Bombay High Court reported as M/s. Majas Land Development Corpn.
& another vs State of Maharashtra and others, AIR 1983 Bombay 188.
The special leave petition preferred by the State against the order of the High Court to a like effect was set aside by this Court, vide its order of August 1983, in Civil Appeal No. 6086 of 1983, by pointing out that it is open to the State Government to release the lands from acquisition and that the Land Acquisition officer cannot be compelled to make the award.
It was, however, pointed out that the Government will be liable to pay compensation to the claimants under section 48(2) of the Land Acquisition Act.
In the affidavit filed by the appellants before the High Court in the present case they have already called upon the respondent company to furnish details of claims, if any, regarding the compensation claimed under section 48.
It is open to the respondent company to pursue this claim and the State Government will dispose of the same in accordance with law.
We are therefore of the opinion that the order passed by the State Government under section 48 should be upheld and the release of the lands from acquisition sustained.
Learned counsel for the respondent company contended that at the time the land was initially acquired under section 4 there had been a proposal that the Government should grant in favour of the company some land contiguous to section No. 40, Hissas Nos. 2 & 3, in exchange for the land sought to be acquired and that the appellants should be directed to give or sell some land to the petitioner.
We are unable to follow how any such proposal, even if made originally, could survive in view of the acquisition proceedings having been dropped.
However, we express no opinion in this regard and leave it to the company, if so advised, to pursue the matter with the Government.
For the reasons discussed above, the civil appeal is allowed and the orders of the High Court dated 9.11.1983 and 6.8.1985 are set aside.
The Rule issued by the High Court stands discharged.
However, in the circumstances of the case, we make no order as to costs.
S.L. Appeal allowed.

Output:
% The State Government, by a notification dated November 6, 1961, issued under section 4 of the Land Acquisition Act, notified for acquisition lands belonging to the respondent.
This was followed by a declaration dated November 18, 1965, under section 6 of the Act, and the notices calling upon the respondent to put its claims for compensation in respect of the lands sought to be acquired.
Thereafter, no further action was taken in this behalf.
In the meantime, the lands in question were encroached upon by a large number of trespassers who put up slums thereon.
The respondent repeatedly asked the State Government to take steps to remove the encroachments and expedite the making of the award and payment of the compensation but no action was taken by the Government.
The respondent thereupon filed a Writ Petition in the High Court for a writ of mandamus, directing the State Government to make the award under section 11 of the Act, and take possession of the lands after payment of the compensation to the respondent.
On March 25, 1981, the State Government passed an order under section 48 of the Act, withdrawing the lands of the respondent from acquisition, and the respondent was, accordingly, informed of that decision.
The respondent thereupon amended its writ petition to challenge the withdrawal order above said as mala fide and to pray for the quashing of the same.
The writ petition was allowed by a Single Judge of the High Court and his decision was affirmed by a Division Bench of the High Court.
Aggrieved, the State Government appealed to this Court, against the decision of the High Court.
Allowing the appeal, the Court, ^ HELD: The High Court erred in striking down the order under section 48 of the Land Acquisition Act and compelling the State 591 Government to acquire the lands of the respondent.
Under the scheme of the Act, neither the notification under section 4 nor the declaration under section 6 nor the notice under section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein.
Section 16 makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government, and till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes.
So long as the possession is not taken over, the mere fact of a notification issued under section 4 or a declaration made under section 6, does not divest the owner of his rights in the land to take care of it and confer on the State Government any right whatsoever to interfere with the ownership of the land or safeguard the interests of the owner.
Section 48 gives liberty to the State Government to withdraw from the acquisition at any stage before the possession of the land is taken by it.
By such withdrawal, no irreparable prejudice is caused to the owner of the land, and, if at all the owner has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under section 48(2).
As held in Trustees of Bai Smarth Jain Shvetamber Murtipujak Ganodhaya Trust and Ors.
vs State of Gujarat and another, AIR 1981 Gujarat 107, the State can be permitted to exercise its power of withdrawal unilaterally.
Having regard to the scheme of the Act, it is difficult to see why the State Government should at all be compelled to give any cogent reasons for its decision not to go ahead with the acquisition of any land, as was the view of the High Court.
It is well settled in the field of specific performance of contracts that no person will be compelled to acquire any land, as a breach of a contract can always be compensated for by damages.
That is also the principle of section 48(2) of the Act.
[594D H; 595A D] Even assuming that a withdrawal order under section 48 should be backed by reasons and should be bonafide, in the present case, the order is not vitiated in any manner.
The Government had intended to acquire vacant land for the construction of houses, but his land had been over run by slum dwellers to such an extent that it was not possible for the Government to effectuate the intended purpose of acquisition.
The Government cannot be compelled to go ahead with the acquisition.
Where slum dwellers on a large scale occupy pieces of land, social and human problems of such a magnitude arise, that it is virtually impossible for municipalities, and no mean task for the Government, to get the lands vacated, and in view of these genuine difficulties if the Government is reluctant to go ahead with the acquisition, it can hardly 592 be blamed.
The Court sees no justification to direct the Government to embark upon such a venture to acquire the land.
Section 24 of the acts lays down the rule that the State will, generally speaking, pay for the land only in the condition in which it was on the date of issue f the notification under sec. 4, and that subsequent changes on the land will not be taken into account in the determination of the compensation.
The fact that the Government exercised the power of withdrawal after the writ petition was filed, does not spell mala fides, once, the existence of circumstances, which justified the decision of the Government to withdraw, is acknowledged.
Far from a decision to withdraw in such a case being considered mala fide, the Government would have been acting mala fide if, despite the clear knowledge that the land could not be used for its purpose, it had decided to go ahead with the acquisition.
The State Government has definitely acted in the best interests of the public and public revenues and its decision could not be faulted.
[595D F, H; 596B; F H] Appeal allowed.
Orders impugned of the High Court set aside.
n Rules issued by the High Court discharged.
[597G] M/s. Majas Land Development Corpn.
and another vs State of Maharashtra and others, AIR 1983 Bombay 188, referred to.


Input:
N: Criminal Appeal Nos.
212 213/71.
Appeal from the Judgment and order dated the 21st November, 1970 of the Gujarat High Court in Criminal Revision Applications Nos. 321 and 322 of 1969.
section N. Anand and M. N. Shroff for the Appellant.
N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J.
Controversy in these appeals centres round the interpretation of the words "specially empowered" appearing in section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (to be (hereinafter referred to as the Act).
The facts giving rise to these appeals are as follows: Chaturbhuj Maganlal and Bai Sabita, respondents herein, are husband and wife residing together at Parvati Bhuvan, Rajkot.
Both 1078 of them together with Bai Hamida Basi Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under sections 5 and 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr.
Cases Nos. 1372 and 1404 of 1968.
When the trial was about to commence in these cases, the accused moved applications raising an objection that the Magistrate had no jurisdiction to try the offences as he had not been "specially empowered" as required by section 2(c) of the Act.
The Magistrate rejected those applications whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same.
Aggrieved, the accused filed two revisions (Cr. R. 321 and 322 of 1969) in the High Court of Gujarat.
A learned Judge of the High Court allowed the revisions on the ground that Mr. Modha, Magistrate 1st Class Rajkot, before whom these cases were pending, had no jurisdiction to try the same because the State Government notification, dated February 19, 1959 did not have the effect of making him a "Magistrate of the first class specially empowered" within the meaning of section 2(c) of the Act.
Accordingly, the Magistrate was directed to drop the proceedings pending against the revision petitioners.
Against that decision of the High Court, the State has now filed these appeals on a certificate granted by the High Court under Article 134 (1) (c) of the Constitution.
Section 2(c) of the Act defines a "Magistrate" to mean "a District Magistrate, a Sub Divisional Magistrate of the First Class specially empowered by the State Government, by notification in the Official Gazette, to exercise jurisdiction under the Act".
Section 22 further says: "No court inferior to that of a magistrate as defined in Clause (c) of Section 2 shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8".
The State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under section 2(c), runs as follows: "In the exercise of the powers conferred by section 2(c) of the Suppression of Immoral Traffic in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under sections 12(1), 18(1), 19, 20(1) and (3) of the Act.
" The question is, whether this notification has the effect of making every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under sections 3, 4, 5, 6, 7 and or 8 of the Act? 1079 Answer to this question depends on a correct interpretation of the expression "specially empowered" in Section 2(c).
There has been a sharp conflict of judicial opinion in regard to the meaning of this expression.
One line of decisions has taken the view (hereafter referred to us the narrow view) that the word "specially" in this expression has reference only to the mode of empowerment as indicated in section 39(1) of the Code of Criminal Procedure, 1898.
According to this view the word "specially" stands in contrast to the word "generally".
Therefore, if powers to try certain offences are conferred on a class of officials by their official title, they are "generally empowered"; but if the powers are conferred on particular individuals by name or by virtue of their office, they are "specially empowered".
On this reasoning it is deduced that the words "specially empowered" imply "the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred".
Some of the cases in which this view has been expounded are: Mohd. Qasim and anr.
vs Emperor; Emperor vs Udho Chandumal; Polubha Vajubha vs Tapu Ruda; and Sabuddin Sheikh Mansur vs J. section Thakkar and anr.
A different view (hereafter referred to as the broad view) has been taken in these decisions: K. N. Vijavan vs State; State vs Judhabir Caetri; State of Mysore vs Kashambi and anr.
; Ashaq Hussain Khan vs section D. O. Monghir, C. V. Madhava Mannadiar vs District Collector and ors.
According to this view, the word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as contrasted with a "general" empowerment.
"Specially" qualifies the word "empowered" and not the person on whom the power is conferred.
In this view, the State Government is within its competence to confer powers under section 2(c) of the Act on some or all the Magistrates of the First Class in the State, in any of the modes known to law, and the Magistrate or Magistrates whom powers are so conferred will be "specially empowered" within the meaning of section 2(c).
In our opinion, this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow view.
It is will recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision, comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.
This rule will apply in full force where the provision confers ample 1080 discretion on the Government for a specific purpose to enable it to bring about an effective result.
The Act has been enacted to suppress a special kind of mischief.
With that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement.
Th narrow view taken in the decision led by Mohd. Qasim 's case, which reads, with external aid, into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act.
It tends to introduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision.
It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has, in its wisdom, confided in full measure to the Government.
In the context of section 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression "specially empowered" has to be eschewed.
Incidently, it may be noticed that none of the decisions expounding the narrow view, was concerned with the interpretation of the expression "specially empowered" in the context of the Suppression of Immoral Traffic in Women and Girls Act.
In Mohammed Qasim vs Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in section 3 of the Opium Act.
Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin 's case (supra) (the ratio of which has been followed by the Judgment under appeal), turns on an interpretation of this expression in the context of section 56 of the Bombay Police Act.
On the other hand, in State of Mysore vs Kashambi and anr.
(supra) which is a prominent exponent of the broad view, the construction of section 2(c) of the Act was directly in issue before the Mysore High Court.
Therein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act.
The accused, Kashambi and Mohadinbi were being prosecuted under section 8(a) of the Act in the court of Judicial Magistrate First Class, Saundatti.
The accused raised an objection that the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective to confer the jurisdiction on him as it did not satisfy the requirement of section 2(c) regarding "special empowerment".
Hegde, J., who spoke for the Bench, expressly dissented from the view taken in Polubha Vajubha vs Tepu Buda (supra) and Mohammed Qasim vs Emperor (supra) and held that the language of section 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special conferment of power as required by section 2(c) and therefore enlarges the scope of that section.
In the opinion of the Bench, the word "specially" is an adjective (adverb ?) to the verb "empowered" and not an adjective to the noun "Magistrate" and that this word means "specifically" or "for a particular purpose".
The Bench did not accept the contention that the word "specially" conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose 1081 of conferring the additional powers.
It was emphasised that the conferment of power under section 2(c) of the Act is not made by having recourse to section 39, Cr.
Procedure Code.
In our opinion, the view taken by the Mysore High Court in Kashambi 's case is the correct one.
It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for construction.
In this connection, the first case to be noticed is Sindhi Lohana Chaithram vs State of Gujarat.
Therein the meaning of the expression "specially empowered" occurring in s.6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration.
By a notification, dated January 22, 1955.
the Saurahtra Government empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander, to authorise by issue of special warrants in each case, a police officer not below the rank of Sub Inspector of Police to do the Varios things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, room or place was suspected us being used as a common gaming house.
The appellant 's house was raided by a Sub Inspector of Police,and on the basis of incriminating evidence the appellant and six others were charged under sections 4 and 6 of the Act.
At the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search warrant, was not authorised to do so because the aforesaid notification did not specially empower Shri Pandhya within the contemplation of section 6.
This Court expressed that in view of the principle embodied in section 15 of the Bombay General Clauses Act, 1904 when power is conferred on a person by name or by virture of his office, the individual designated by name or as the holder of the office for the time being is empowered specially.
Judging by this test, the Court held that the notification, dated January 22, 1955, "specially empowered" Shri Pandhya, holder of the office of the Dy.
Superintendent of Police,Porbander to issue the search warrant under section 6.
The Court noticed the conflict of judicial opinion on the question whether a notification empowering all Magistrates of certain class to try certain class, can be said to be empowered specially every Magistrate of that class to try those cases,but left that question open.
However, it settled that a person can be specially empowered even by virtue of his office.
Again, in Abdul Husein Tayabali and ors.
vs State of Gujarat and ors.
decided on September 20, 1967, the construction of the expression "specially appointed" within the meaning of section 3(c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acquisition (Company 's) Rules, came up for consideration before this Court.
By a notification, dated October 1, 1963, issued under section 3(c) of the Land Acquisition Act, the State Government authorised all Special Land Acquisition Officers in the State to perform the functions of 1082 Collectors under that Act within the area of their respective jurisdiction.
Question arose whether that notification satisfied the requirements of section 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act.
Shelat, J., speaking for a Bench of three learned Judges, answered this question in the affirmative and made these apposite observations: "In our view, these words (specially appointed) simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed ', that is, appointed for the specific purpose of performing those functions.
The word specially 'has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment.
The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act.
It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector.
It is the appointment therefore which is special and not the person from amongst several such officers.
Besides sec.
15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function such power can be exercised either by name or by virtue of office.
" There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name.
" The above observations are an apt guide to the interpretation of the expression "specially empowered" in section 2(c) of the Act with which we are concerned.
Although the word in section 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Hussain 's case, were "specially appointed", their connotation is the same as conveyed by the expression "specially authorised" or "specially empowered" (see Oxford Dictionary according to which the word "authorised" means "empowered" "appointed").
In constructing the expression "specially empowered" in the instant case, therefore,we can safely adopt the reasoning in Abdul Hussain 's case.
Thus considered, the term "specially" must be taken to have reference to the special purpose of the empowerment.
Even according to Oxford Dictionary, one sense of this word is "of special purpose".
It qualifies the word "empowered".
It is used in an attributive sense to highlight the special nature of the power.
It does not convey the sense of a contradistinction or contrast between "special" empowerment and "general" empowerment.
All that this word signifies is the investment of some or all the Magistrates of the First Class with powers which are 'special 'and are not part of the 'ordinary ' or 'additional 'powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure.
In short, the word "specially" 1083 cannotes that it is the empowerment which is special and not the person.
Thus considered, special empowerment does not necessarily involve selection of individuals by name or ex offico from the Magistrates of the 1st Class.
The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under section 2(c) of the Act,and not under the Code of Criminal Procedure.
Be that as it may,s.39 of the Code of Criminal Procedure, 1898 and s.32 of the Code of Criminal Procedure,1973, are concerned with the mode of conferring power.
"Power may be conferred on any person either by name or in virtue of his office", or "on classes of official generally by their official title".
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose.
The mode of conferring power is not to be confused with the purpose of the power,as seems to have been done in the cases taking the narrow view.
The narrow view can be tested yet from another angle.
According to it if a Magistrate of the 1st Class is selected by name or by virtue of his office and invested with these powers to try offences under the Act,he would be "specially empowered".
If no such pick and chose is made and the power is conferred on all the Magistrates of the same class, they would be "generally empowered".
This distinction if taken to its logical and, breaks down, and exposes the inherent artificiality of the proposition.
If the empowering of a Magistrate of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of section 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.
In Abdul Hussain 's case, the contention canvassed for the narrow view was considered from this aspect, also.
It was observed: ". even if the meaning of the word 'specially ' were to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L. A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.
Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.
Such a notification would have the same force as a separate notification in respect of each individual Sp. L. A. Officer.
Such a notification would mean that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas.
" 1084 On parity of reasoning ,it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notification ,by virtue of their office to try offences under the Act in the area of their respective jurisdiction, must be held to be "special" and not "general".
It will not be out of place to mention here that Abdul Hussain 's case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddin 's case (supra), Consequently, the Bench did not have the advantage of the guidance furnished by Abdul Hussain 's case.
In the light of the construction put by us on the expression "specially empowered" as used in section 2(c) of the Act, we hold that by virtue of the State Government Notification dated July 22, 1958, the Judicial Magistrate First Class Rajkot has the jurisdiction to try the offences under the Act.
Accordingly, we allow these appeals, set aside the judgment of the High Court.
The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law.
The cases, being very old, it is directed that they be disposed of on top priority basis, with utmost expedition, if possible, within three months from today.
V.P.S. Appeals allowed.

Output:
Section 2(c), Suppression of Immoral Traffic in Women and Girls Act, 1956, defines a Magistrate to mean a District Magistrate, a Sub Divisional Magistrate of the First Class specially empowered by the State Government by notification in the official Gazette, to exercise jurisdiction under the Act.
The appellant State issued a notification under the section empowering all the Judicial Magistrates of the 1st Class to exercise jurisdiction to try certain offences under the Act.
The High Court held that the notification did not have the effect of making a Magistrate one specially empowered within the meaning of section 2(c).
Allowing the appeal to this Court, ^ HELD: It is not necessary that the State Government should pick and choose individual Magistrates and confer special power on them.
The notification had the effect of making every Judicial Magistrate of the First Class in the State, within the area of his respective jurisdiction, a Magistrate specially empowered to try those offences.
[1083E; 1084C] Mohd. Qasim & Anr.
vs Emperor, AIR, ; Emperor vs Udho Chandumal, AIR 1943 Sind 107; Polubha Vajubha vs Tapu Buda, AIR 1956 Sau.
73 and Sabuddin Sheikh Mansur vs J. section Thakkar & Anr.
ILR [1968] Guj. 4, disapproved.
K. N. Vijayan vs State, AIR 1953 Tr.
Co. 402.
State vs Judhabir Caetri AIR 1953 Assam 35; (F.B.); State of Mysore vs Kashambi & Anr: ; Ashaq Hussain Khan vs S.D.O. Manghir.
ATR 1965 Pat 446 and C. V. Madhava Mannadiar vs Distt.
Collector & Ors., AIR 1970 Kerala 50.
approved.
(1) Where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision.
comports best with its purpose and preserves its smooth working, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.
This rule will apply in full force where the provision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result.
[1079G 1080A] (2) The word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as Contrasted with a "general" empowerment.
"Specially" qualifies the word "empowered" and not the person on whom the power is conferred.
In this view the State Government is within its competence to confer powers under the section on some or all of the Magistrates of the First Class in the State in any of the modes known to law and the Magistrate or Magistrates.
On whom Powers are so conferred, will be "specially empowered" within the meaning of the section.
This broad view keeps in focus the special purpose of the empowerment and must be preferred to the narrow view, namely.
That the word "specially" stands in contrast to the word "generally".
According to 1077 the narrow view if powers to try certain offences are conferred on a class of officials by their official title, they are "generally empowered '; but if the powers are conferred on particular individuals by name or by virtue of their office, as a result of selection by the Government, they are 'specially empowered".
This view which reads into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act, and tends to reduce its efficacy and to impede the exercise of the discretionary power which the legislature has confided in full measure to the Government.[1079B D, E G; 1080B C, H; 1082G] (3) The word "specially" signifies the investment of some or all the Magistrates of the First Class with powers which are "special ' and are not part of the "ordinary" or "additional" powers which can be conferred on a Magistrate of the First Class under the Code of Criminal Procedure.
The fallacy in the narrow view stems from the undue stress it lavs on the mode empowerment at the cost of the special purpose of the empowerment ignoring the fact that the Act is a code by itself which creates new offences triable only by those Magistrates of the First Class who are specially empowered under section 2(c) of the Act, and not under the Code of Criminal Procedure.
Power may be conferred under section 39 of the Code of Criminal Procedure, 1898, corresponding to section 32 of the Code of Criminal Procedure, 1973, on any person either by name or in virtue of his office or on classes of officials generally by their official title.
The special mode or the general mode of conferring the power applies to the conferment of power both for a general purpose or a special purpose.
The mode of conferring power is not to be confused with the purposes of the power.
[1082H; 1083B D] (4) A person can be specially empowered even by virtue of his office.
If empowering a Magistrate of the First Class to try offences under the Act by virtue of his office satisfies the requirement of section 2(c), there is no reason why the empowerment of all the Magistrates of the First Class in the State under the notification by virtue of their office to try offences under the Act in the areas of their respective jurisdictions should not be held to be special but treated as general.
The Government could have issued separate notifications for each Magistrate.
Instead of doing so if one notification were to be issued authorising each of them to perform those functions, there could be no valid objection.
[1081F G; 1083E F, G 1084B] Sindhi Lokana Chajthram vs State of Gujarat, ; and Abdul Hussain Tayabali and ors.
vs State of Gujarat and ors.
; , followed.