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N: Criminal Appeal No. 4 of 1976.
279 Appeal by special leave from the judgment and order dated the 29th August 1975/1st Sept., 1975 of the Bombay High Court in Criminal Appeal No. 1639 of 1972.
Ram Jethmalani, Mrs. section Bhandare, A.N. Karkhanis, T. Sridharan and C.K. Sucharita for the Appellant.
J.L. Nain, and H.R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated 29th August 1975/1st September 1975, of the Bombay High Court convicting the appellant, Mohanlal Gangaram Gehani (hereinafter referred to as A 1) under section 326, I.P.C. and sentencing him to rigorous imprisonment for three years.
He was also convicted under section 323 read with section 34 I.P.C. but no separate sentence was awarded.
The trial court had convicted A 1 under section 326/34 I.P.C. which was altered by the High Court to one under section 326 simpliciter.
The details of the prosecution case are to be found in the judgment of the High Court and it is not necessary for us to repeat the same.
We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, counsel for the appellant.
The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11 11.30 p.m.
According to the prosecution while Ishrat Malik Faqih (hereinafter referred to as 'Ishrat ') was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at about 12 15 a.m. he met Salim, a friend of his, alongwith Shaikh Abdul Kalim alias Pappu (P.W. 4).
He also saw another person standing with Salim and Pappu.
All of them started talking to one another when suddenly they saw a black Fiat car coming from Lady Jamashedji Road and taking a turn to Chotani Road.
The car stopped near the place where the aforesaid persons were talking and A 1, A 2 (Shashi) and A 3 (Kumar) emerged from the car.
According to the informant, Ishrat, all the three accused were known to him before.
These persons were dead drunk and asked Ishrat and party as to who amongst them was their leader.
Some sort of 280 an altercation took place in the course of which A 2 caught hold of the shirt of Shanker Shetty and assaulted him with fists.
He was joined by A 3 and the altercation culminated in a murderous assault said to have been made by A 1 who took out a dagger and stabbed Shetty on the right side of the stomach below the chest.
Shetty fell down.
Thereafter A 1 ran back to his car and sped away leaving behind A 3 who could not get into the car.
Ishrat immediately proceeded to the Mahim police station and lodged an F.I.R. with Sub Inspector Sawant (P.W. 7) at 00.50 hrs.
On April 3, 1972.
According to the prosecution, the informant had rushed to the police station and lodged the F.I.R. within an hour of the occurrence.
Subsequently, it appears that a wireless police van which passed through the place of occurrence having found Shetty lying injured picked him up and removed him to K.E.M. Hospital.
Dr. Heena (P.W. 11) admitted Shetty and made a note of the injuries received by him in the notesheet of the hospital register and also mentioned the fact that the injured had named his assailant as one Tiny.
It was further alleged by the prosecution that Sawant after recording the F.I.R. rushed to the hospital and contacted Shetty and recorded his statement at 1.45 a.m. After the usual investigation, chargesheet was submitted against A 1 to A 3 who were ultimately tried and convicted for an offence under section 326 read with section 34 I.P.C. and A 1 was sentenced as mentioned hereinbefore.
A 2 and A 3 each was sentenced to suffer rigorous imprisonment for two years.
A 1 pleaded innocence and his defence was that he was falsely implicated due to enmity because Ishrat and his friends were carrying on Matka business and the appellant being an informer of the Customs Department had made certain reports against the prosecution witnesses particularly Ishrat who was a smuggler.
We need not refer to the defence of A 2 or A 3 as they have been acquitted by the High Court.
The appellant raised several points before the High Court which after hearing the parties confirmed his conviction but reduced his sentence to rigorous imprisonment for three years.
In support of the appeal Mr. Jethmalani has argued three important points relating to certain circumstances which completely demolish the entire prosecution case against the appellant.
281 In the first place, it was argued that the F.I.R. was not at all lodged at 00.50 hrs.
as alleged by the prosecution but much later.
Secondly, Shetty did not know the appellant before the occurrence and thirdly, Mr. Jethmalani argued, that his version that the name of the appellant was disclosed to him by Salim should not be accepted.
Another important circumstance to which our attention was drawn and which has greatly impressed us is that the hospital register (Ext. 22) shows that when Shetty was taken to the hospital and produced before Dr. Heena (P.W. 11) he gave the name of his assailant as one Tiny or Tony.
The evidence further shows that Tiny or Tony was undoubtedly a known person who was living in a locality near the place of occurrence and was not a fictitious red herring as the prosecution would have us believe.
According to Ext.
22 Shetty made a statement to Dr. Heena at 1.
15 a.m. on April 3, 1972.
Dr. Heena, who appeared as P.W. 11, fully supported the contents of Ext.
It is manifest that once the statement of P.W. 11 is accepted then the entire prosecution case against the appellant falls.
The High Court realising the importance of this document and the evidence of P.W. 11 seems to have explained it away on three main grounds.
In the first place, the High Court laid great emphasis on the fact that where Dr. Heena had mentioned the name of Tiny, there was no particular column where the name of assailant could be given.
We have examined the original document ourselves and we find that the entire part of the register where the statement has been recorded by P.W. 11 is described as Registrar 's note which comprehends everything including the nature of injuries of the injured, any statement made by him or similar other matters.
We are, therefore, unable to agree with the High Court that there was no particular column under which the name of the assailant could be mentioned.
Moreover, there is absolutely no evidence on the record to show that P.W. 11 was in any way friendly with the appellant or had any animus against Shetty which might impel her to make false entries in order to oblige the appellant.
P.W. 11 was an absolutely disinterested and independent witness.
After going through her evidence we find no reason why her evidence should not be accepted in toto.
The High Court further observed that from the hospital register it appears that the word 'Tony ' was first written, then crossed 282 and changed into 'Tiny '.
This may be a mistake in the pronunciation of the name and much significance cannot be attached to this circumstance because P.W. 11 had initialled the change and it is not a case of forgery at all.
Moreover, P.W. 11 was examined as a prosecution witness and if the learned prosecutor had thought that she (P.W. 11) had given false evidence to help the appellant, he could have declared her hostile and sought the permission of the court to cross examine her but no such course was adopted.
Hence, the mere change of the word 'Tony ' to Tiny ' can be explained on the basis of a bona fide mistake.
There is no erasure.
Both names are decipherable.
What may have happened was that the injured may have pronounced Tiny in such a way that P.W. 11 thought it was Tony but on further clarification the injured must have said that it was Tiny.
P.W. 11 in her evidence has clearly stated that she had examined the patient and had given the history of the assault with knife by a person called Tiny and that the patient was fully conscious.
There is nothing in her evidence to show that her statement could be untrue.
The High Court then sought to exclude the evidence of P.W. 11 as being inadmissible as the provisions of section 145 of the Evidence Act were not complied with.
It was suggested that Shetty had mentioned the name of the appellant in his statement in court but the statement of P. W. 11 shows that he had named Tiny as his assailant and, therefore, Dr. Heena (P.W. 11) should have been cross examined on this point to explain the contradiction.
With great respect, the High Court has erred on this point and has misconstrued the provisions of section 145 of the Evidence Act which may be extracted thus: "145.
Cross examination as to previous statements in writing.
A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
" 283 It is obvious from a perusal of section 145 that it applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding.
If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under section 145.
In other words, where the statement made by a person or witness is contradicted not by his own statement but by the statement of another prosecution witness, the question of the application of section 145 does not arise.
To illustrate, we might give an instance suppose A, a prosecution witness, makes a particular statement regarding the part played by an accused but another witness B makes a statement which is inconsistent with the statement made by A, in such a case section 145 of the Evidence Act is not at all attracted.
Indeed, if the interpretation placed by the High Court is accepted, then it will be extremely difficult for an accused or a party to rely on the inter se contradiction of various witnesses and every time when the contradiction is made, the previous witness would have to be recalled for the purpose of contradiction.
This was neither the purport nor the object of section 145 of the Evidence Act.
For instance, in the instant case, if P.W. 11 had been examined under section 164 of Code of Criminal Procedure or before a committing court and made a particular statement which was contradictory to a statement made in the Sessions Court, then section 145 would have applied if the accused wanted to rely on the contradiction.
Such, however, is not the position because the evidence of P.W. 11 is not only consistent throughout but the earlier statement recorded by her can be taken to corroborate her.
There was no question of contradicting the statement of P.W. 11 by her previous or subsequent statement.
On the other hand, Dr. Heena was a prosecution witness whose statement that Shetty had named Tiny on the earliest occasion, was an admission by a prosecution witness which threw considerable doubt on the complicity of the appellant in the occurrence.
If Shetty stated in his evidence that he named A 1 (Mohanlal) then that would be a statement which was contradictory to that of P. W. 11 and the question will be which of the two statements should be preferred.
If Dr. Heena had made two inconsistent statements then only section 145 would have applied.
284 In Bishwanath Prasad & Ors.
vs Dwarka Prasad and Ors.(1) while dwelling upon a distinction between an admission and a statement to which section 145 would apply, this Court observed as follows: "In the former case an admission by a party is substantive evidence if it fulfills the requirements of section 21 of the Evidence Act; in the latter case a prior statement is used to discredit the credibility of the witness and does not become substantive evidence.
In the former there is no necessary requirement of the statement containing the admission having to be put to the party because it is evidence proprio vigor: in the latter case the Court cannot be invited to disbelieve a witness on the strength of a prior contradictory statement unless it has been put to him, as required by section 145 of the Evidence Act.
" The statement made by P.W. 11 was, therefore, an admission of a prosecution witness and if it was inconsistent with the statement made by another prosecution witness namely Shetty, there was no question of the application of section 145 of the Evidence Act which did not apply to such a case in terms.
Thus, the reason given by the High Court for distrusting the evidence of Dr. Heena is wholly unsustainable.
Moreover, the statement of the injured to Dr. Heena being the first statement in point of time must be preferred to any subsequent statement that Shetty may have made.
In fact, the admitted position is that Shetty did not know the appellant before the occurrence nor did he know his name which was disclosed to him by one Salim.
Therefore, Salim who is now dead, being the source of information of Shetty would be of doubtful admissibility as it is not covered by section 32 of the Evidence Act.
And, once we believe the evidence of P.W. 11, as we must, then the entire bottom out of the prosecution case is knocked out.
Apart from this, there is another circumstance which renders the testimony of Shetty (P.W. 5) valueless.
He admits in para 10 of his evidence (page 35 of the paperbook) that he had not seen the accused before the date of the incident, that he did not know him at all, and that he came to know the name of the accused on the 285 date of the incident and that it was Salim who had given him the name of the accused while he was being taken to the hospital.
The fact that Salim disclosed the name of the appellant to Shetty is falsified by the fact that he did not name the appellant to Dr. Heena when he reached the hospital but named one Tiny.
It is also relevant to note that Tiny Advani is not an unknown figure but is a living person as would appear from the evidence of P.W. 3, Shaikh, where he says that he knew Tiny Advani who is also known to Ishrat, Salim and Pappu and they are on greeting terms.
Another important circumstance which discredits the testimony of P.W. 5 (Shetty) is that he admits that although he did not know the accused from before the occurrence yet the accused was shown to him by the police at the police station.
The relevant statement of P.W. 5 may be extracted thus: "I had seen the accused before coming to the Court and after the incident, I had seen the accused ten days after I was discharged from the hospital.
I was shown these accused by the Police at the Police Station." Thus, as Shetty did not know the appellant before the occurrence and no Test Identification parade was held to test his power of identification and he was also shown by the police before he identified the appellant in court, his evidence becomes absolutely valueless on the question of identification.
On this ground alone, the appellant is entitled to be acquitted.
It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticising the evidence of Dr. Heena when her evidence was true and straight forward.
For these reasons, therefore, we are unable to place any reliance on the evidence of Shetty so far as the identification of the appellant is concerned.
The other witness who knew the accused is P.W. 1 (Ishrat) who is said to have lodged the F.I.R. at Mahim police station at 12.50 a.m. on 3.4.1972.
There is clear intrinsic evidence in the case to show that the FIR was ante timed and could not have been lodged at 12.50 a.m. P.W. 7, Sawant had clearly admitted in his evidence at page 41 of the Paperbook that the station diary entry which has to contain the contents of the F.I.R. does mention that Ishrat had 286 visited the Police station and lodged the complaint.
The witness further admits that the station diary entry does not also mention anywhere that he (P.W. 7) had left the police station for K.E.M. hospital accompanied by P.W. 1, Ishrat.
He also admits that he knew the accused before the incident.
The witness further admits that although he had come to know the name of the assailant at 12.50 a.m. yet he did not take any step to arrest or cause the arrest of any one of the accused.
He has not given any explanation for this unusual conduct.
It is extremely doubtful if P.W. 1 had actually named the appellant, inspector Sawant would not have arrested him immediately after the F.I.R. was lodged or, at any rate, after he returned from the Hospital.
The evidence, however, shows that A 1 was arrested on 5.4.72, that is to say, two days after the occurrence.
No explanation for this unusual phenomenon has been given by the prosecution.
For these reasons, therefore, the statement of P.W. 1 that he lodged the F.I.R. at 12.50 a.m. on 3.4.72 and disclosed the name of the appellant becomes absolutely doubtful.
If we reject this part of the evidence of P.W. 1, then his evidence on the question of complicity of the appellant in the crime also becomes extremely doubtful.
The only other evidence against the appellant is that of P.Ws. 3 and 4.
So far as P.W. 3 is concerned his evidence also suffers from the same infirmity as that of Shetty.
P.W. 3 (Shaikh) admits at page 22 of the Paperbook that he had not seen the accused or any of the three accused before the date of the incident and that he had seen all the three for the first time at the time of the incident.
He further admits that the names of the accused were given to him by the police.
In these circumstances, therefore, if the appellant was not known to him before the incident and was identified for the first time in the court, in the absence of a test identification parade the evidence of P.W. 3 was valueless and could not be relied upon as held by this court in V.C. Shukla vs State (Delhi Administration)(1) Where this Court made the following observations: "Moreover, the identification of Tripathi by the witness for the first time in the court without being tested by a prior test identification parade was valueless.
" 287 Same view was taken in a Federal Court decision in Sahdeo Gosain & Anr.
vs The King Emperor.(1) This, therefore, disposes of the evidence of P.W. 3.
As regards the evidence of P.W. 4, the High Court itself found at page 129 of the paperbook that the learned Additional Sessions Judge had disbelieved P.W. 4, Shaikh alias Pappu.
Therefore, the evidence of P.W. 4 also goes out of consideration.
The position, therefore, is that there is absolutely no legal evidence on the basis of which the appellant could be convicted.
For the reasons given above, we are satisfied that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt.
The appeal is accordingly allowed and the appellant is acquitted of the charges framed against him.
He will now be discharged from his bailbonds and need not surrender.
P.B.R. Appeal allowed.

Output:
The prosecution case against the appellant was that on the night of occurrence between 11 and 11.30 the informer and two of his friends were standing on a road when suddenly the three accused emerged out of the car and the appellant assaulted and stabbed the injured person with a dagger.
The prosecution alleged that there was enemity between the assailants and the injured person; that the informer lodged a F.I.R. at 00.50 hrs.
and that the injured man was picked up by a Police Wireless Van and admitted in the hospital.
The trial court convicted the accused under section 326/34 I.P.C. and sentenced them variously.
The High Court acquitted two of the three accused.
In regard to the appellant, disbelieving the evidence of the doctor on the ground that the name of the assailant was first written by her as "Tony" but later changed to read as "Tiny" and that secondly there was no particular column in the register where the name of the assailant could be written, the High Court altered the conviction to one under section 326 I.P.C. and sentenced him to rigorous imprisonment for three years.
On appeal to this Court it was contended on behalf of the appellant that (1) the F.I.R. was not lodged at 00.50 hrs.
as claimed by the prosecution; (2) the injured did not know the appellant before the occurrence; (3) the version of the injured that the name of the assailant was disclosed to him by a friend of the informer should not be accepted and (4) the discrepancy in the name of the assailant recorded by the doctor was not such as to completely discredit her evidence.
Allowing the appeal, ^ HELD: (a) The change of name "Tony" into "Tiny" in the hospital register might be due to mis hearing of the name in the first instance and correcting it later.
Much could not be made of this circumstance.
The doctor had initialled the alteration.
The prosecution has not made any attempt to declare 278 the doctor a hostile witness and to cross examine her.
Therefore the change in the name could be a bona fide mistake.
That apart, the injured was fully conscious at the time he made the statement to the doctor.
[282 A C] (b) The High Court was in error in stating that there was no particular column in the hospital register in which the name of the assailant could be mentioned.
The entire part of the register where the statement had been recorded by the doctor is described as the "Registrar 's note" which comprehends everything including the nature of injuries to the injured, any statement made by him or similar other matters.
[281 E F] (c) There is no evidence on record to show that the doctor was in any way friendly with the appellant or inimical towards the injured man; she was an absolutely disinterested and independent witness.
[281 G] 2 (a) The High Court had erred in holding that the doctor 's evidence was inadmissible in that the provisions of section 145 of the Evidence Act had not been complied with.
[282 F] (b) Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding.
If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statements under section 145, that is to say, where the statements made by a person or a witness is contradicted not by his own statement but by the statement of another prosecution witness the question of application of section 145 does not arise.
[283 A C] (c) The doctor 's statement was an admission of a prosecution witness.
If it was inconsistent with the statement made by another prosecution witness there was no question of application of section 145 of the Evidence Act.
[283 C] In the instant case the statement of the injured to the doctor being first in point of time it must be preferred to any subsequent statement made by the injured.
There is much evidence to show that the injured did not know the appellant before the date of the incident.
No test identification parade had been held.
The appellant was shown by the police before he identified him.
If the accused was not known to the injured and his friends before the incident and was identified for the first time in the court, this evidence has no value and cannot be relied upon in the absence of a test identification parade.
[285 E,C,F] V.C. Shukla vs State (Delhi Administration), ; and Sahdeo Gosain & Anr.
vs The King Emperor , referred to.


Input:
t Petition Nos. 751, 794 and 798 of 1986.
(Under Article 32 of the Constitution of India.) Dr. Y.S. Chitale, Soli J. Sorabiee, A.B. Diwan, B.V. Desai, Ms. Madavi Gupta, Bharat Sangal, Harish N. Salve, T.V.S.N. Chari, Ms. Sunita Modigunda, Ms. Vrinda Grover and S.K. Bhattacharya for the Petitioners.
G. Ramaswamy, Additional Solicitor General Anil Dev Singh, P.S. Shroff, S.S. Shroff, R. Karanjawala, Mrs. M. Karanjawala, Ejaz Maqbool, Mrs. Shobha Dikshit, E.C. Aggar wal, B.V. Desai, Ms. Madhavi Gupta, C.S. Vaidyanathan and S.V. Deshpande for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
These are three petitions under article 32 of the Constitution by three different groups of peti tioners.
In each of these writ petitions petitioner No. 1 is a private limited company and the second petitioner is a shareholder thereof.
The petitionercompany in each of these cases obtained the right to collect oleo resin 260 gum or to process the same for industrial purposes from the State of Jammu & Kashmir and each of them seeks to challenge the vires of the provisions of the Jammu & Kashmir Extrac tion of Resin Act (7 of 1986) (hereinafter referred to as the 'Act ').
Though there are some variations of facts relevant to each of the writ petitions, the allegations are more or less similar in regard to the relevant contentions both factual and legal.
When rule was issued the respondent State came with almost the same plea, traversing common grounds and revealing a common stand in its returns to the Court.
These three writ petitions were heard at a time and are now being disposed of by a common judgment.
Resin is the secretion extracted by tapping or otherwise from chir, chil and kail trees wildly growing in the forests of Jammu & Kashmir.
It is an exudate and when subjected to chemical treatment and distillation with the aid of steam yields 70% resin, 15% turpentine and the remaining 15% of waste material.
The down stream products which are manufac tured from this raw material are varnish, camphor, paints and turpene chemicals.
The petitioner company in writ petition No. 751/86 obtained under Government order dated 27.4.1979 allotment of 10 to 12 lacs of blazes annually for extraction of resin from the inaccessible forests in Poonch, Reasi and Ramban Divisions of the State for a period of 10 years on terms and conditions set out in the said Government order.
Government order had also been made granting rights in favour of the petitioner company in writ petition No. 794/86.
The petitio nercompany in writ petition No. 798/86 was a processor only and had not undertaken to work as a tapper.
Applications under article 32 of the Constitution were filed in this Court at that point of time on the ground that the Government orders and/or contracts were hit by articles 14 and 19 of the Constitution and the grant of forest rights in favour of the present petitioners was arbitrary, mala fide and not in public interest.
It was further contended that State lar gesse had been conferred on the petitioners at the cost of the State exchequer.
The petitioners therein also pleaded that a monopoly had been created in favour of the private grantees and was not protected under article 19(1)(g) of the Constitution.
According to Kasturilal, the petitioner before this Court then, the benefits should have been thrown open and opportunity should have been provided to all interested persons to compete for the obtaining of the contract.
A three Judge Bench consisting one of us (the learned Chief Justice) dealt with the matter at length and ulti 261 mately dismissed the petition holding that there was no substance in any of the contentions advanced on behalf of Kasturilal.
(Kasturi Lal Lakshmi Reddy vs State of Jammu & Kashmir & Anr., The order made in favour of the petitioner company in writ petition No. 794/86 and incorporated in the agreement dated 6.11.
1978 had also been challenged in a separate writ petition before this Court and the reasoned order for rejection of the writ petition is found in Brij Bhushan & Ors.
vs State of Jammu & Kashmir & Ors.
, While the petitioner company in writ petition No. 751/86 had agreed to work as tapper and processor on the stipula tion that 25% of the annual collection of gum subject to minimum of 1500 metric tonnes would be made over to the Government company (J & K Industries Limited) and out of the rest not exceeding the limit of 3500 metric tonnes would be used by them, the petitioner company in writ petition No. 794/86 who had been operating from before as tappers only entered into a formal agreement with the State claiming to process and manufacture down stream goods.
The writ peti tioner company in writ petition No. 798/86 had agreed to work as processor only.
In the seventies, the State of Jammu & Kashmir decided to industrialise the hitherto under developed State and with that end in view came forward with scheme and threw open invitation to outsiders to set up industries at convenient places within the State.
As stimulus Government offered land and other facilities.
The petitioners in these three writ petitions and another who has since withdrawn the writ petition, went into the State of Jammu & Kashmir in response and negotiated the arrangements we have already adverted to.
While the petitioners were carrying on their business activities, Governor 's Act 7 of 1986, the provisions whereof are impugned in these petitions by which all their existing rights came to terminate, came into force with effect from 23.4.1986.
The Act sought to create a monopoly with refer ence to resin in favour of J & K Industries Limited, which is a respondent to these petitions.
The Act has seven sections in all.
Section 1 gives the short title, extent and the date of commencement while section 2 defines four terms, namely, 'prescribed ', 'resin ', 'resin depot ' and 'resin products '.
Section 3 bans extraction and other dealings of resin by private persons while s, 4 makes provision for disposal of resin.
Section 5 provides the manner of fixation of price.
Section 6 provides for penalty for offences 262 and section 7 clothes the State Government with power to make rules for carrying out the purposes of the Act.
Challenge in the writ petitions has been to the provisions contained in sections 3, 4 and 5 of the Act.
We propose to excerpt these provisions for convenience: "3. Ban on extraction by private persons Notwithstanding anything to the contrary contained in any law, rule, order, instrument, agreement or contract or in any judgment, decree or order of any Court or Authority, no person, other than the Government shall as from the commencement of this Act , (a) extract resin by tapping or otherwise from Chit/ Chil or Kail trees in the State whether such trees belong to the State or not; (b) transport resin from one place to other in the State except under and in accord ance with the permit granted under this Act; (c) acquire, possess, store, dispose of or otherwise deal with any resin extracted and manufactured in the State.
Disposal of resin (1) All resin extracted under section 3 shall be stored at resin depots and thereaf ter shall be sold by the Government to the Jammu & Kashmir Industries Limited for proc essing.
(2) After processing it by the Jammu & Kashmir Industries Limited, the resin products, if any surplus, shall be sold by it to the small scale units and medium scale units in the State in such manner as may be provided for, and at such price as may be fixed by the Jammu & Kashmir Industries Limit ed in consultation with the Government.
Fixation of price (1) The Government shall, having due regard to the following facts, fix the price at which resin shall be sold by it during a year, namely 263 (a) the sale price of resin, if any, fixed under this Act during the preceding three years; (b) the cost of transport; (c) the cost of extraction of resin; (d) the cost of packing of resin including the cost of container in which resin is delivered; (e) the prevalent sale price at which resin is being sold in other resin producing States; (f) any other factor which the Gov ernment considers relevant.
(2) The price so fixed shall be published in the Official Gazette and shall not be altered during the year to which it relates.
" In exercise of the rule making power, the State Government has brought into force a set of rules known as the Jammu & Kashmir Extraction of Resin Rules, 1986 with effect from 27.9.1986.
It is not in dispute that by the provisions of this Act all the existing contracts between parties and the State and existing grants in respect of collection, transport, storage and otherwise dealing with resin have come to forthwith terminate and a monopoly situation has been created qua these operations in resin in favour of the Government compa ny.
The Act does not provide for any compensation and the petitioners maintain that the existing rights in their favour amounted to 'property ' and could not have been expro priated in contravention of the guarantee in Part III of the Constitution.
It is the stand of the State that the benefits and privileges conferred on the three petitioners either under contract or under Government orders did not constitute property and by the provisions of the Act no transfer of such property has taken place.
It is relevant to point out at this stage that sub clause (f) was deleted from article 19(1) of the Constitution by the Forty fourth Amendment with effect from 20th of June, 1979 and acquisition, holding and/or disposal of property ceased to be a fundamental right.
The same constitutional amendment deleted article 31 but so far as the State 264 of Jammu & Kashmir is concerned the Forty fourth Amendment did not bring about any change and right to property, there fore, continues to be fundamental and law enunciated by this Court treating property be one of the fundamental rights still applies to Jammu & Kashmir.
That is why, sumptuous reference has been made by counsel for the petitioners to a catena of precedents touching upon right to property as a fundamental one.
The petitioners maintained that the Government orders and contracts under which they have got the right to exploit or utilise the particular forest product does amount to 'property ' and the petitioners were entitled to protection thereof against expropriation and in case no compensation was provided the relevant provisions of the Act became exposed to challenge.
They have similarly contended that the impugned provisions of section 3 are hit for contravening the fundamental right guaranteed by article 19(1)(g) which confers upon them the right to carry on any occupation, trade or business.
The Government orders made in 1979 did confer the right to exploit the forest and appropriate a part of the collec tion of the gums for purposes of business.
The concept of 'property ' known to jurisprudence has expanded through several pronouncements of this Court.
Ramana Dayaram Shetty vs The International Airport Authority of India & Ors.
, ; , to which one of us (the learned Chief Justice) was party held: "Today the Government in a welfare State is the regulator and dispenser of special serv ices and provider of a large number of bene fits, including jobs, contracts, licences, quotas, mineral rights etc.
The Government pours forth wealth, money, benefits, services, contracts, quotas and licences.
The valuables dispensed by Government take many forms, but they all share one characteristic.
They are steadily taking the place of traditional forms of wealth.
These valuables which derive from relationships to Government are of many kinds.
They comprise social security benefits, cash grants for political sufferers and the whole scheme of State and the local welfare.
Then again, thousands of people are employed in the State and the Central Governments and local authorities.
Licences are required before one can engage in many kinds of business or work.
The power of giving licences means power to withhold them and this gives control to the Government or to 265 the agents of Government on the lives of many people . .
It is virtually impossible to lose money on them and many enterprises are set up primarily to do business with Govern ment.
Government owns and controls hundreds of acres of public land valuable for mining and other purposes.
These resources are available for utilisation by private corporations and individuals by way of lease or licence.
All these mean growth in the Government largess and with the increasing magnitude and range of governmental functions as we move closer to a welfare State, more and more of our wealth consists of these new forms.
Some of these forms of wealth may be in the nature of legal rights but the large majority of them are in the nature of privileges.
But on that account, can it be said that they do not enjoy any legal protection? Can they be regarded as gratuity furnished by the State so that the State may withhold grant or revoke it at its pleasure . .
The law has not been slow to recognise the importance of this new kind of wealth and the need to protect individual interest in it and with that end in view, it has developed new forms of protection.
Some interests in Government largess, formerly regarded as privileges, have been recognised as rights while others have been given legal protection not only by forging procedural safeguards but also by confining/structuring and checking Government discretion in the matter of grant of such largers . .
It is insisted, as pointed out or ' Prof. Reich in an especially stimulating article on The New Property ' in , 'that Government action be based on standards that are not arbitrary or unauthorised.
" In Kasturi Lal Lakshmi Reddy vs State of Jammu & Kashmir & Anr., (supra), the interest created in favour of the petitioners in the forest assets of the State (which has now been fatally hit by section 3) was considered to be proper ty.
At page 1354 of the Reports this Court stated: "It was pointed out by this Court in Ramana Dayaram Shetty vs The International Airport Authority of India & Ors., (supra) that with the growth of the welfare state, new forms of property in the shape of Government largess are developing, since the Government is in creasingly assuming the role of regulator and dispenser of social services and provider of a large number of benefits including jobs, con 266 tracts, licences, quotas, minerals rights etc.
" In Subodh Gopal Bose 's case ; , this Court had pointed out: "The word 'property ' in the context of Article 31 (the same should be the meaning under Article 19(1)(f) which is designed to protect private property in all its forms, must be understood both in a corporeal sense as having reference to all those specific things that are susceptible of private appropriation and enjoyment as well as in its juridical or legal sense of a bundle of rights which the owner can exercise under the municipal law with respect to the user and enjoyment of those things to the exclusion of all others." Again, in Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. & Ors., ; , this Court held: "A contract or agreement which a person may have with the company and which may be can celled by the Directors in exercise of powers under ordinance will undoubtedly be property within the meaning of the two articles.
" In R.C. Cooper vs Union of India, ; an eleven Judge Bench at page 567 of the Reports, stated: "By Entry 42 in the Concurrent List power was conferred upon the Parliament and the State Legislatures to legislate with respect to 'Principles on which compensation for property acquired or requisitioned for the purpose of the Union or for any other public purpose is to be determined, and the form in which such compensation is to be given '.
Power to legis late for acquisition of property is exercisa ble only under Entry 42 of List III, and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists.
Under that Entry property can be compulsorily acquired.
In its normal connotation property means the 'highest right a man can to anything, being that right which one has to lands or tene ments, goods or chatties which does not depend on another 's courtesy; it includes ownership, estates 267 and interests in corporeal things, and also rights such as trade marks, copyrights, pat ents and even rights in personam capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially with reference to transfer or succession, and to their capacity of being injured." In Madan Mohan Pathak vs Union of India & Ors., ; this Court was examining the validity of the Life Insurance Corporation (Modification of Settlement) Act of 1976.
The settlement had created a right to bonus in favour of the Class 111 and Class IV employees of the Corporation and the Act adversely interfered with that settlement.
The question for consideration of the seven Judge Bench was whether bonus payable under the settlement was 'property ' within the meaning of article 31(2) and whether stopping pay ment of bonus amounted to compulsory acquisition of property without payment of compensation.
The Court ultimately held that bonus was property and the legislation was bad.
At p. 358 of the Reports, this Court said: "It is clear from ' the scheme of fundamental rights embodied in Part III of the Constitu tion that the guarantee of the right to property is contained in Article 19(1)(f) and clauses (1) and (2) of Article 31.
It stands to reason that 'property ' cannot have one meaning in Article 19(1)(f), another in Arti cle 31 clause (1) and still another in Article 31, clause (2).
'Property ' must have the same connotation in all the three Articles and since these are constitutional provisions intended to secure a fundamental right, they must receive the widest interpretation and must be held to refer to property of every kind." At p. 360 of the Reports, the Court again stated that every form of property, tangible or intangible, including debts and choses in action constituted property, In this group of cases before us the executive grant or the contract created interest in the petitioners and there is no room to doubt that by such process in favour of the petitioners property right had been created.
Learned Additional Solicitor General appearing for the State had contended that the contractual interest or the interest in terms of the Government order did not constitute property and relied upon certain precedents of this Court.
The Coal Nationalisation case on which reliance was mainly placed is clearly distinguishable on facts.
268 We do not think it necessary to refer to other authorities as the ones referred to above are binding precedents and unequivocally indicate that the interests which are in dispute before us do constitute property entitled to protec tion under article 19(1)(f) and are covered by article 31(2) of the Constitution.
Reliance has been placed by learned Additional Solicitor General on the restrictive provision contained in sub article
(5) whereby reasonable restrictions in public interest could be imposed on the exercise of right to property.
There are situations, the learned counsel has argued, where the re strictions could go to the point of almost wiping out the right.
He relied upon some precedents in support of this proposition.
Section 3 is a total annihilation of existing rights and nothing of the interest created either under the executive orders or contract is allowed to survive.
We do not think there is room within the legal frame to sustain such a situation under sub article
Sub article
(6), like sub article
(5), protects restrictive law in public interest.
What we have said in regard to sub article (5) perhaps equally applies to sub article
Article 31(2) provided: "No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question in any court on the ground that the amount so fixed or deter mined is not adequate or that the whole or any part of such amount is to be given otherwise than in cash:" It has already been stated that the Act does not provide for any compensation.
Section 3 has an overriding applica tion.
It provides that it shall not only apply to the clas sified trees belonging to the State but it shall also apply to such trees belonging to private persons and rights of such private owners to carry on the various operations described in section 3 are completely taken away without provi sion of any compensation.
It cannot be contended in view of what we have stated above that the right of beneficial enjoyment of the trees by carrying out the processes named in section 3 do not constitute 'property '.
Unless the position is 269 covered by clause (2A) of article 31, in view of our conclusion that the interest created under the contract, Government order or the right of beneficial enjoyment vested in the private owner of the trees amount to 'property ', the Act would be hit by article 31(2).
Sub article
(2A) provides: "Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acqui sition or requisitioning of property, notwith standing that it deprives any person of his property." Learned Additional Solicitor General 's contention has been that under the provisions of section 3 of the Act the rights that vested in the petitioners stand wiped out or extin guished but those rights have not been vested in either the State or the Government company.
This contention overlooks the resultant outcome of the provisions of the Act.
Section 3 which takes away private fights and authorises Government alone to extract, transport it and acquire, possess or dispose of or otherwise deal with the resin extracted and manufactured within the State and section 4 authorises Government to sell the same to the Government company for processing.
What is taken away under section 3 from the hands of private parties is undoubtedly given by the same provision to Gov ernment.
In Madan Mohan Pathak 's case (supra), this Court had pointed out: "The verbal veil constructed by employing the device of extinguishment of debt cannot be permitted to conceal or hide the real nature of the transaction.
It is necessary to remem ber that we are dealing here with a case where a constitutionally guaranteed right is sought to be enforced and the protection of such right should not be allowed to be defeated or rendered illusory by legislative stratagems.
The courts should be ready to rip open such stratagems and devices and find out whether in effect and substance the legislation trenches upon any fundamental rights.
The encroachments on fundamental rights are often subtle and sophisticated and they are disguised in lan guage which apparently seems to steer clear of the constitutional inhibitions.
" It is not necessary to multiply precedents, As we have already pointed 270 out, section 3 of the Act extinguishes private rights and confers the right to deal with the subject matter of such rights on the State.
An attempt was made to distinguish the rule in Pathak 's case by relying upon the decision in Tara Prasad Singh vs Union of India & Ors., ; That seven Judge Bench was dealing with the Coal Mines Nationalisation (Amendment) Act of 1976.
The Court referred to the two previous decisions in Ajit Singh vs State of Punjab, ; and Madan Mohan Pathak vs Union of India, (supra), and observed: "These decisions have no application to the instant case because the interest of the lessees and sub lessees which was brought to termination by section 3(3)(b) of the Nation alisation Amendment Act does not come to be vested in the State.
The Act provides that excepting a certain class of leases and sub leases, all other leases and subleases shall stand terminated in so far as they relate to the winning or mining of coal.
There is no provision in the Act by which the interest so terminated is vested in the State; Nor does such vesting flow as a necessary consequence of any of the provisions of the Act.
Sub section (4) of section 4 of the Act provides that where a mining lease stands terminated under sub section (3), it shall be lawful for the Central Government or a Government Company or a corporation owned or controlled by the Central Government to obtain a prospecting licence or a mining lease in respect of the whole or part of the land covered by the mining lease which stands so terminated.
The plain intendment of the Act, which, may it be reiterated, is neither a pretense nor a fa cade, is that once the outstanding leases and sub leases are terminated, the Central Govern ment and the other authorities will be free to apply for a mining lease.
Any lease hold interest which the Central Government, for example, may thus obtain does not directly or immediately flow from the termination brought about by section 3(3)(b).
Another event has to intervene between the termination of existing leases and the creation of new interests.
The Central Government, etc.
have to take a posi tive step for obtaining a prospecting licence or a mining lease.
Without it, the Act would be ineffective to create of its own force any right or interest in favour of the Central Government, a Government Company or a Corpora tion 271 owned, managed or controlled by the Central Government.
" The statutory scheme of the Act which we are considering is to extinguish private rights both in respect of Govern ment owned trees as also trees in private ownership and to vest those rights in the State Government or the Government company.
The facts in this group of cases, therefore, clear ly indicate that there is a direct relationship between nullification of the private rights and vesting of those in the State or the Government company.
In other words, where the contract was given by the Government in respect of the trees belonging to the State, the nullification of the contract would result in the automatic transfer by reversion of the property in the contract to the Government.
Similar ly, where the ownership vested in the private persons by operation of section 3 of the Act, the right to appropriate the usufruct of the trees is taken away from the private owner and is vested in the State.
The rule in Pathak 's case, therefore, is applicable.
Sub article
(2A) of article 31, there fore, does not apply to the facts of the present case.
Consequently, sub article
(2) applies and compensation, there fore, was payable before the property could be taken over by the State.
Petitioners in writ petition No. 794/86 had claimed that pursuant to the arrangement entered into between them and the State following the invitation by the State they had invested Rs. 1.68 crores in shape of plant and machinery and 63 lacs of rupees by way of land and buildings.
The peti tioner in the other two cases stated that investments had been made by them as well.
The petitioners were invited to set up industries by assuring them supply of the raw materi al.
They changed their position on the basis of representa tions made by the State and when the factories were ready and they were in a position to utilise the raw material, the impugned Act came into force to obliterate their rights and enabled the State to get out of the commitments.
We are inclined to agree with the submissions made on behalf of the petitioners that the circumstances gave rise to a fact situation of estoppel.
It is true that there is no estoppel against the legislature and the vires of the Act cannot be tested by invoking the plea but so far as the State Govern ment is concerned the rule of estoppel does apply and the precedents of this Court are clear.
It is unnecessary to go into that aspect of the matter as in our considered opinion the impugned Act suffers from the vice of taking away rights to property without providing for compensation at all and is hit by article 31(2) of the Constitution.
Connected proceedings had been taken for interim arrangement 272 regarding provision of raw material to the petitioners and certain other parties.
We do not propose to deal with those aspects in this judgment but liberty is given to parties to apply for such directions as they consider appropriate and such applications, when filed, will be dealt with separate ly.
In the result, each of the writ petitions succeeds.
We declare the provisions of sections 3 and 4 of the Act to be ultra vires the Constitution and since these provisions contain the soul of the Act and without them, the Act cannot oper ate, the entire Act has to suffer.
The petitioners shall have their costs to these proceedings.
Hearing fee of Rs.3,000 is awarded in each of the petitions.
Y.L. Petition allowed.

Output:
These three Writ Petitions have been filed by three different Private Limited Companies and their share holders challenging the vires of the Jammu & Kashmir Extraction of Resin Act (7 of 1986).
The circumstances that led to the filing of these Writ Petitions may be stated thus: The State of Jammu & Kashmir with a view to industria lise the under developed State formulated schemes and invit ed outsiders to set up industries in the State and as a stimulus the Government offered land and other facilities.
The Petitioner Companies, in response to the said invitation went to the State of Jammu & Kashmir and negotiated the arrangements, as a result of which each Company had obtained a right to collect resin gum to process the same for indus trial purposes.
The Petitioner Company in Writ Petition No. 751 of 1986 had obtained under Government order dated 27.4.79 allotment of 10 to 12 lacs of blazes annually for extraction of resin from the forests in Poonch and Rambam Divisions for a period of 10 years.
Government order granting rights had been made in favour of the Petitioner Company in W.P. No. 794 of 1986.
The Petitioner Company in W.P. No. 798 of 1986 was a proces sor only and had undertaken to work as a tapper.
The orders passed in favour of these Companies referred to above were challenged before this Court as being violative of articles 14 and 19 of the Constitution on the ground that grant of forest rights to the Petitioners were arbitrary, mala fide and not in public interest.
It was contended that State largesse had been created in favour of the Petitioners at the cost of State Exchequer and the grant created monopoly.
This Court dismissed the Writ Petitions holding that there was no substance 258 in any of the contentions advanced by the Petitioners.
Kasturi Lal Lakshmi Reddy vs State of Jammu & Kashmir & Anr.
, The order made in favour of the Petitioner in W.P. No. 794 of 1986 and incorporated in the agreement dated 6.11.1978 was also challenged but this Court rejected the Petition.
Brij Bhushan & Ors.
vs State of Jammu & Kashmir & Ors.
, While the Petitioners were carrying on with the business contracted for, Governor 's Act of 1986 came into force.
The provisions of the said Act particularly sections 3, 4 and 5 have been impugned in these Petitions.
It is contended on behalf of the Petitioners that Gov ernment orders and contracts under which they have got the right to exploit or utilize the particular forest product amounts to "property" and they are entitled to protection thereof against expropriation and in case no compensation was provided, the provisions of the Act are hit for contra vening the fundamental right guaranteed by article 19(1)(g) which confers upon them the right to carry on any occupa tion, trade or business.
On the other hand the case put forward by the State is that the benefits and privileges conferred on the three Petitioners either under contract or under Government orders did not constitute property and by the provisions of the Act no transfer of such property has taken place.
Allowing the Writ Petition, this Court, HELD: The statutory scheme of Jammu & Kashmir Extraction of Resin Act, 1986 is to extinguish private rights both in respect of Government owned trees as also trees in private ownership and to vest those1 rights in the State Government or the Government Company.
[271A B] The Executive grant or the contract created interest in the Petitioners and there is no room to doubt that by such process in favour of the Petitioners property right had been created.
The interests which are in dispute before this Court do constitute property entitled to protection under article 19(1)(1) and are covered by article 31(2).
[267G; 268A B] 259 Ramana Dayaram Shetty vs The International Airport Authority of India & Ors., ; and Kasturi Lal Lakshmi Reddy vs State of Jammu & Kashmir & Anr., ; The ownership vested in the private persons, by opera tion of section 3 of the Act, the right to appropriate the usu fruct of the trees is taken away from the private owner and is vested in the State.
Sub article
(2A) of article 31, therefore, does not apply.
Consequently, sub article
(2) applies and compensation, therefore, was payable before the property could be taken over by the State.
Provisions of sections 3 and 4 of the Act are ultra vires of the Constitution and since these provisions contain the soul of the Act, without them the Act cannot operate, the entire Act has to suffer.
[271C D; 272B C] Subodh Gopal Bose 's case ; ; Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. & Ors., ; ; R.C. Cooper vs Union of India, ; ; Madan Mohan Pathak vs Union of India & Ors., ; and Tara Prasad Singh vs Union of India & Ors., ; , referred to.


Input:
Civil Appeal No. 30 of 1971.
Appeal by special leave from the judgment and order dated the 19th February, 1970 of the Andhra Pradesh High Court in case Reference No. 2 of 1967.
R. M. Mehta and section P. Nayar for the appellant.
P. Ram Reddy and A.V.V. Nair for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Keynote thought.
Politics and philanthropy may well fall victims to the contruction of section 5(a) and (j) of the Expenditure.
Tax Act, 1957 (the Act for 1018 short) if we fall victim to the submission naively made, at the first stage, by counsel for the State.
In fairness to him, we must state that later he retracted from that position, and rightly so, for the Act, in spirit and letter, does not intend this blow on the profession of politics or the disposition for donations.
A fair reading of the provisions in question convincingly excludes from 'taxable expenditure ' sums wholly and exclusively incurred for the purpose of a profession or occupation carried on by the assessee and no modern man may dispute that politics is a profession or occupation.
Likewise, expenditure by way of gift or donation incurred by the assessee is also excluded and no politically conscious soul will deny that donation to the party in a democracy squarely comes within this exclusionary provision.
The factual matrix Expenditure tax under the Act was sought to be levied from the assessee PVG Raju, the respondent before us.
Paradoxical, perhaps, it may appear but here is a case of a rich Maharaja practising the politics of socialism, spending lavishly for furthering his party 's popularity and the prospects of his fellow candidates at the elections to the Andhra Pradesh Legislative Assembly.
This expenditure, falling under two heads, was taxed by the assessing authority and upheld up to the Tribunal level.
The High Court, on reference, reversed the findings on both counts and the Commissioner of Expenditure Tax, the appellant, challenges the legality of this verdict.
The best beginning in stating the facts may well be to extract the questions of law referred by the Tribunal in its own words: "(1) Whether on the facts and in the circumstances of the case the expenditure of Rs. 38,832/ claimed to be the amount incurred by the assessee for the benefit of other candidates for election is excludible from the taxable expenditure either under Section 5 (a) or under Section 5 (j) of the Expenditure Tax Act ? (2) Whether on the facts and in the circumstances of the case the sum of Rs. 47,867/ claimed to be party expenses could be excluded from the taxable expenditure of the assessee either under Section 5(a) or under Section 5(i) of the Expenditure Tax Act ? We have to assume the following facts as implied in the very questions referred to the High Court and from the attendant circumstances.
They are: (a) that the respondent, during the relevant period was the Chairman of the State Socialist Party which was interesting itself in electoral politics; 1019 (b) the respondent was a wealthy socialist; (c) that he was meeting not only the expenditure of his own elections but spending moneys for the benefit of other candidates belonging to his party; (d) that he was issuing cheques to the Secretary and other office bearers of his party to meet the expenses involved in party work.
He expended Rs. 38,832/ for propelling the election prospects of other party candidates during the election.
Likewise, he gave Rs. 47,867/ to his party through its office bearers.
On these facts the question is whether he is eligible for exclusion of the two sums from expenditure tax either under section 5(a) or under section 5(j) of the Act.
Consideration of the legal issue It is appropriate to start with reading the relevant portion of s 5 of the Act: "section 5.
No. expenditure tax shall be payable under this Act in respect of any such expenditure as is referred to in the following clauses, and such expenditure shall not be included in the taxable expenditure of an assessee.
(a) any expenditure, whether in the nature of revenue expenditure or capital expenditure, incurred by the assessee wholly and exclusively for the purpose of the business, profession, vocation or occupation carried on by him or for the purpose of earning income from any other source; (b) to (i). (j) any expenditure incurred by the assessee by way of, or in respect of any gift, donation or settlement on trust or otherwise for the benefit of any other person.
" The assessee was Party Chairman and politics was undoubtedly his profession or occupation, it being admitted that his interest in politics was not causal nor sporadic but abiding and ambitious.
The contention of the respondent which met with success before the High Court was that the election expenses of other candidates set up by him as Chairman of the Socialist Party, loosely described as 'party expenditure ', were incurred wholly and exclusively for the purpose of his 'profession ' or 'occupation '.
So, the first point which arrests our attention in examining this contention is as to whether politics of the socialist brand or otherwise is a profession or occupation.
There can hardly be any doubt that it is either, or both.
Harold Laski treated politics as a science and wrote his well known book on the Grammar of Politics, but the art of politics at a practical level has also been the subject of comment and has been praised and denounced on the basis that it is a profession.
To Gandhiji it is sacred as religion.
In Lincoln it rises to noble heights of statesman 1020 ship.
Lenin, Nehru and a galaxy of other great visionaries and makers and moulders of the modern world have dedicated themselves to politics as a profession.
Of course in its vulgar and vicious manifestations, this occupation has been regarded by literary giants like Dr. Johnson as the last refuge of a scoundrel '.
Robert Louis Stevenson has used barbed words: 'Politics is perhaps the only profession for which no preparation is thought necessary (Familiar studies of Men and Books, 'Yoshida Torajiro ').
George Bernard Shaw uses stinging language in Major Barbara: 'He knows nothing; and he thinks he knows everything.
That points clearly to a political career '.
It is thus clear, without reference to the wealth of case law relied on by the High Court, that politics has been a profession and, indeed, under modern conditions in India, perhaps the most popularand uninhibited occupation with its perils, of course.
Law cannot take leave of realities and therefore section 5(a) must bear the construction that politics is a profession or occupation.
The next question is whether the expenditure incurred by the assessee for the election of candidates set up by him as Chairman of his party can be legitimately regarded as incurred 'wholly and exclusively ' for the purpose of his profession or occupation.
We have grave doubts whether meeting the expenses of other candidates can be fulfilment of his professional expenses, but this question deserves no deeper probe for the simple reason that section 5(j) embraces the expenditure as it does answer the description of a donation.
When a person gives money to another without any material return, he donates that sum.
An act by which the owner of a thing voluntarily transfers the title and possession of the same from himself to another, without any consideration, is a donation.
A gift or gratuitous payment is, in simple English, a donation.
We do not require lexicographic learning nor precedential erudition to understand the meaning of what many people do every day, viz., giving donations to some fund or other, or to some person or other.
Political donations are not only common, but are assuming deleterious dimensions in the public life of our country.
It is therefore clear that when this Raja assessee gave money to the candidates of his Party for them to meet their election expenses, he made donations.
Even if he met their election expenditure, it was money gratuitously given on their behalf and therefore amounted to donation.
Without straining language, we reach the natural conclusion that what the respondent expended for the other candidates during the elections was 'donation ' in the language of the law.
There is no suggestion nor evidence that any material return was in contemplation when he spent these sums.
Being a politically important man with plenty of money and vitally interested in boosting his Party 's standing in the State, he donated liberally for candidates set up by the party.
In this view section 5(j) aplies to these donations which earn exemption from the expenditure tax.
The next item relates to sums gives to the Socialist Party.
It is reasonable to assume that the amounts paid to the office bearers 1021 of the party were without an eye on any material return other than loyalty or gratitude.
They were outright gifts.
Indeed, many rich people out of diverse motives make donations to political parties.
The hope of spiritual benefit or political goodwill, the spontaneous affection that benefaction brings, the popularisation of a good cause or the prestige that publicised bounty fetches these and other myriad consequences or feelings may not mar a donation to make it a grant for a quid pro quo.
Wholly motiveless donation is rare, but material return alone negates a gift or donation.
We need not investigate the propriety or political donations 'unlimited ' and often invisible.
All that we need consider is whether such sums are gifts and donations or are non gratuitous payments with a tag of return.
We have no doubt that on the question as framed, and on the facts and circumstances present, these sums were paid purely as gifts and donations to his Party by the respondent.
It is not surprising either, because he was the Chairman of the said party, had a long and liberal purse from which to draw and a large circle of support to build up in the long run.
The inevitable conclusion from our discussion is that both the heads of expenditure fall under s.5(j) of the Act and, therefore, flow out of the assessable zone.
The High Court 's conclusion is sound and the appeal deserves to be and is hereby dismissed, but without costs.
V.P.S. Appeal dismissed.

Output:
Under section 5 (a) and (j) of the Expenditure Tax Act, 1957, no expenditure tax shall be payable on any expenditure incurred by the assessee wholly and exclu sively for the purpose of his business profession or vocation, and on any expenditure incurred by the assessee by way of donation.
The respondent assessee was the Chairman of the State Socialist Party and politics was his profession or occupation.
He is a wealthy socialist and spent Rs. 38,832/ towards election expenses of other candidates of his party, and gave Rs. 47,867/ to the office bearers of his party to meet the expenses involved in party work.
^ HELD: The two amounts are eligible for exclusion from expenditure tax.
[1021 B] (1) Under modern conditions, politics is a profession or occupation.
[1020 C] (2) But the expenses incurred on behalf of other candidates cannot be the assessee 's professional expenses.
[1020 D] (3) The amounts, however, fall under section 5(j) of the Act.
When a person gives money to another without any material return, he donates that sum.
Therefore, when the assessee gave money to the candidates of his party for their elections expenses, it was money gratuitously given, that is he made donations.
[1020 E G] (4) Similarly, the amounts paid to office bearers of the party were not for any material return.
They were for loyalty or gratitude.
Wholly motiveless donation is rare but material return alone negates a gift or donation.
Therefore, they also were outright gifts.
[1021 A C]