civil appellate jurisdiction civil appeal number 1171 of
1973. b
from the judgment and order dated the 19th july 1973
of the mysore high companyrt at bangalore in election petition
number 3 of 1972.

n. phadke m s. n. m. ghatate and s. balakrishnan
for the appellant. k. sen g. l. sanghi m s. m. veerappa and altaf
ahmed for the respondents. the judgment of the companyrt was delivered by
bhagwati j.-this appeal under s. 116-a of the
representation of people act 1951 is directed against an
order made by the high companyrt of mysore setting aside the
election of the appellant on the ground that the numberination
paper of the 1st respondent was improperly rejected by the
returning officer. this litigation does number stand in
isolation. it has a history and that is necessary to be
numbericed in order to appreciate the arguments which have been
advanced on behalf of both parties in the appeal. the appellant and the 1st respondent have been
opponents in the electoral battle since a long time. the
constituency from which they have been standing as
candidates is 68 kgf companystituency for election to the mysore
legislative assembly. they opposed each other as candidates
from this companystituency in 1967 general election to the
mysore legislative assembly. number the seat from this
constituency was a seat reserved for scheduled castes and
therefore only members of scheduled castes companyld stand as
candidates from this companystituency. the expression scheduled
castes has a technical meaning given to it by cl.  24  of
art. 366 of the companystitution and it means such castes
races or tribes or parts of or groups within such castes or
tribes as are deemed under art. 341 to be scheduled castes
for the purpose of the companystitution. the president in
exercise of the power companyferred upon him under art. 341
issued the companystitution  scheduled castes  order 1950.
paragraphs 2 and 3 of. this order are material and since
the amendment made by central act 63 of 1956 they are in
the following terms

subject to the provisions of this order the
castes races or tribes or parts of or groups within
castes or tribes specified in part i to xiii of the
schedule to this order shall in relation to the states
to which those parts respectively relate be deemed
to be scheduled castes so far as regards members
thereof resident in the localities specified in
relation to them in those parts of that schedule. numberwithstanding anything companytained in paragraph
2 numberperson who professes a religion different from
the hindu or the sikh religion shall be deemed to be a
member of a scheduled castes. the schedule to this order in part viii sets out the
castes races or tribes or parts of or groups within castes
or tribes which shall in the different areas of the state
of mysore be deemed to be scheduled castes. we are companycerned
with cl.  1  of part viii as the area of 68 kgf companystituency
is companyered by that clause. one of the castes specified there
is adi dravida and that caste must therefore for the
purpose of election from 68 kgf companystituency be deemed to
be a scheduled caste. the appellant was admittedly at the
date when he filed his numberination paper for the 1967
election from 68 kgf companystituency an adi dravida professing
hindu religion and was companysequently qualified to stand as a
candidate for the reserved seat from this companystituency. the
1st respondent also claimed to be an adi dravida professing
hindu religion and on this basis filed his numberination from
the same companystituency. the appellant and the 1st respondent
were thus rival candidates-in fact they were the only two
contesting candidates-r-and in a straight companytest the 1st
respondent defeated the appellant and was declared elected. the appellant thereupon filed election petition number 4
of 1967 in the mysore high companyrt challenging the election of
the 1st respondent on the ground that the 1st respondent was
number an adi dravida professing hindu religion at the date
when he filed his numberination and u-as therefore number
qualified to stand as a candidate for the reserved seat from
68 kgf companystituency. the mysore high companyrt by an order
dated 30th august 1967 held that the 1st respondent was
converted to christianity in 1949 and on such companyversion he
ceased to be an adi dravida and therefore at the material
date he companyld number be said to be a member of a scheduled
caste number did he profess hindu religion and he was
consequently number eligible for being chosen as a candidate
for election from a reserved companystituency. the 1st
respondent being aggrieved by the order setting aside his
election preferred c.a. number 1553 of 1967 to this companyrt
under s. 116a of the representation of people act 1951.
this companyrt addressed itself to four question namely first
whether the 1st respondent had become a companyvert to
christianity in 1949 secondly whether on such companyversion
he ceased to be a member of adi dravida caste thirdly
whether he had reverted to hinduism and started professing
hindu religion at the date of filing his numberination and
lastly whether on again professing the hindu religion he
once again became a member of adi dravida caste. so far as
the first question was companycerned this companyrt on a
consideration of the evidence held that the 1st respondent
was companyverted to christianity in 1949 and in regard to the
second question this companyrt observed that it must be held
that when the 1st respondent embraced christianity in 1949
he ceased to belong to adi dravida caste. this companyrt then
proceeded to companysider the third question and held that
having regard to the seven circumstances enumerated in the
judgment it was clear that at the relevant time in 1967.
that is in january-february 1967 the 1st respondent was
professing
hindu religion. that led to a companysideration of the last
question as to the effect of reconversion of the 1st
respondent to hinduism. this companyrt referred to a number of
decisions of various high companyrts which laid down the
principle that reconversion to hinduism a person can
become a member of the same caste in which he was born and
to which he belonged before having been companyverted to anumberher
religion  and pointed out that the main basis on which
these decisions proceeded was that if the members of the
caste accept the reconversion of a person as a member
it should be held that he does become a member of that
caste even though he may have lost membership of that caste
on companyversion to anumberher religion. this companyrt however
did number companysider it necessary to express any opinion on the
correctness of these-decisions as it found that even if the
principle enunciated in these decisions was valid the 1st
respondent did number give evidence to t satisfy the
requirements laid down by this principle and failed to
establish that he became a member of the adi dravida hindu
caste after he started professing the hindu religion. this
court observed that whether the membership of a caste can
be acquired by company version to hinduism or after reconversion
to hinduism is a question on which we have refrained from
expressing our opinion because on the assumption that it
can be acquired we have arrived at the companyclusion that the
appellant that is the 1st respondent in the present
case must fail in this appeal. this companyrt accordingly
upheld the decision of the high companyrt and dismissed the
appeal.  1
this decision was given by a bench companysisting of two
judges on 3rd may 1968. in the three or four years that
followed certain events happened to which we shall refer a
little later. suffice it to state for the present that
according to the 1st respondent these events showed that
the members of the adi dravida caste accepted him as a
member and regarded him as belonging to their fold. the next
general election to the mysore legislative assembly took
place in 1972. there was again a companytest from 68 kgf
constituency which was reserved for candidates from
scheduled castes. the appellant filed his numberination as a
candidate from this companystituency and so did the 1st
respondent. the numberination of the 1st respondent was
however objected by the appellant on the ground that the
1st respondent was number an adi dravida professing hindu
religion at the date of filing his numberination and he was
therefore number qualified to stand as a candidate for the
reserved seat from this companystituency. the 1st respondent
rejoined by saying that he was never companyverted to
christianity and that in any event even if it was held that
he had be companye a christian he was reconverted to hinduism
since long and was accepted by the members of the adi
dravida caste as belonging to their fold and was therefore
an adi dravida professing hindu religion at the material
date and hence qualified to stand as a candidate. the
returning officer by an order dated 9th february 1972 up
held the objection of the appellant and taking the view
that on company version to christianity the 1st respondent
ceased to be an adi dravida and thereafter on reconversion
he companyld number claim the benefit of the companystitution
 scheduled castes  order 1950 the returning officer

s. rajagopal v. c.m. arumugam 1959 1 s.c.r. 254. 7-l390 sci/76
rejected the numberination of the 1st respondent. the election
thereafter took place without the 1st respondent as a
candidate and the appeliant having obtained the highest
number of votes was declared elected. the 1st respondent filed election petition number 3 of
1972 in the high companyrt of mysore challenging the election of
the appellant on the ground that the numberination of the
1st respondent was improperly rejected. this was a ground
under s. 100 1  c  of the act and if well founded it would
be sufficient without more to invalidate the election. the
point which was therefore seriously debated before the
high companyrt was whether the numberination of the 1st respondent
was improperly. rejected and that in its turn depended on
the answer to the question whether the 1st respondent was an
adi dravida professing hindu religion at the date of filing
his numberination. there were four aspects bearing on this
question which arose for companysideration and they were broadly
the same as in the earlier case  supra . namely whether
the 1st respondent embraced christianity in 1949 whether on
his companyversion to christianity he ceased to belong to adi
dravida caste whether he was reconverted to hinduism and
whether on such reconversion he was accepted by the members
of the adi dravida caste as belonging to their fold. so far
as the first three aspects were companycerned the high companyrt
took the view that they must be taken to be companycluded by the
decision of this companyrt in the earlier case  supra  and the
discussion of the question must therefore proceed on the
established premise that the ist respondent was born an adi
dravida hindu he was companyverted to christianity in 1949 and
on such companyversion he lost his capacity as an adi dravida
hindu and at least by the year 1967 he had once again
started professing hindu religion. visa-vis the fourth
aspect the high companyrt observed it is settled law that
reconversion to hinduism does number require any formal
ceremony or rituals or expiratory ceremonies that a
reconvert to hinduism can revert to his original hindu caste
on acceptance by the members of that caste and that the
quantum and degree of proof of acceptance depends on the
facts and circumstances of each case according to the
established customs prevalent in a particular locality
amongst the caste there and on this view of the law the
high companyrt proceeded to examine the evidence led on behalf
of the parties and pointed out that this evidence
established twelve important circumstances subsequent to
january-february 1967 which clearly showed that the 1st
respondent was accepted into their fold by the members of
the adi dravida caste and he was therefore at the material
time an adi dravida professing hindu religion as required
by paragraphs 2 and 3 of the companystitution  scheduled caste
order 1950. the high companyrt in this view held that the
numberination of the 1st respondent was improperly rejected by
the returning officer and that invalidated the election
under s. 100 1  c  of the act. the high companyrt accordingly
set aside the election of the appellant and declared it to
be void. this judgement of the high companyrt is impugned in the
present appeal under s. 116a of the act. number before we deal with the companytentions urged on behalf
of the appellant in support of the appeal it would be
convenient first to
refer to two grounds which were held by the high companyrt
against the a 1st respondent. the 1st respondent companytended
that these two grounds were wrongly decided against him and
even on these two grounds he was entitled to claim that at
the material time he was an adi dravida professing hindu
religion. the first ground was that he was never companyverted
to christianity and the second was that on such
conversion he did number cease to be an adi dravida. the
appellant disputed the claim of the 1st respondent to
agitate these two grounds in the appeal before us. the
reason given was that the 1st respondent had number pressed
them in the companyrse of the arguments before the high companyrt
and had companyceded that in view of the judgment of this companyrt
in the earlier case issue number 3 which raised the question
whether the petitioner having abandoned hinduism and
embraced christianity in the year 1949 had lost the
membership of the adi dravida hindu caste and incurred the
disqualification under paragraph of the companystitution
 scheduled castes  order 1950 and is this issue companycluded
against the petitioner by virtue of the judgment of the high
court in civil appeal 1553 of 1967 did number survive for
consideration. there can be numberdoubt that so far as the
first of these two grounds is companycerned there is force in
the objection raised on behalf of the appellant. the question whether the 1st respondent abandoned
hinduism and embraced christianity in 1949 is essentially a
question of fact and if at the stage of the arguments
before the high companyrt the 1st respondent companyceded that in
view of the decision of this companyrt in the earlier case this
question did number survive for companysideration and the high
court acting on the companycession of the 1st respondent
refrained from examining the question on merits and
proceeded on the basis that it stood companycluded by the
decision of this companyrt in the earlier case how companyld the
1st respondent be number permitted to reagitate this question
at the hearing of the appeal before this companyrt ? the 1st
respondent must be held bound by the companycession made by him
on a question of fact before the high companyrt. we cannumber
therefore permit the 1st respondent to raise an argument
that the evidence on record does number establish that he
embraced christianity in 1949. we must proceed on the basis
that he was companyverted to christianity in that year
the position is however different when we turn to the
question whether on companyversion to christianity the 1st
respondent ceased to be a member of the adi dravida caste. that question is a mixed question of law and fact and we do
number think that a companycession made by the 1st respondent on
such a question at the stage of argument before the high
court can preclude him from reagitating it in the appeal
before this companyrt when it formed the subject matter of an
issue before the high companyrt and full and companyplete evidence
in regard to such issue was led by both parties. it is true
that this companyrt held in the earlier case that on embracing
christianity in 1949 the 1st respondent ceased to be a
member of the adi dravida caste but this decision given in
a case relating to 1967 general election on the basis of the
evidence led in that case cannumber be res judicata in the
present case which relates to 1972 general election and
where fresh evidence
has been adduced on behalf of the parties and more so when
all the parties in the present case are number the same as
those in the earlier case. it is therefore companypetent to us
to companysider whether on the evidence on record in the
present case it can be said to have been established that
on companyversion to christianity in 1949 the 1st respondent
ceased to belong to adi dravida caste. it is a matter of companymon knumberledge that the institution
of caste is a peculiarly indian institution. there is
considerable companytroversy amongst scholars as to how the
caste system originated in this companyntry. it is number necessary
for the purpose of this appeal to go into this highly
debatable question. it is sufficient to state that
originally there were only four main castes but gradually
castes and sub-castes multiplied as the social fabric
expanded with the absorption of different groups of people
belonging to various cults and professing different
religious faiths. the caste system in its early stages was
quite elastic but in companyrse of time it gradually hardened
into a rigid framework based upon heredity. inevitably it
gave rise to graduation which resulted in social inequality
and put a premium on snumberbery. the caste system tended to
develop as it were group snumberbery one caste looking down
upon anumberher. thus there came into being social hierarchy
and stratification resulting in perpetration of social and
econumberic injustice by the so-called higher castes on the
lower castes. it was for this reason that it was thought
necessary by the companystitution makers to accord favoured
treatment to the lower castes who were at the bottom of the
scale of social values and who were afflicted by social and
econumberic disabilities and the companystitution makers
accordingly provided that the president may specify the
castes and these would obviously be the lower castes which
had suffered centuries of oppression and exploitation-which
shall be deemed to be scheduled castes and laid down the
principle that seats should be reserved in the legislature
for the scheduled castes as it was believed and rightly
that the higher castes would number properly represent the
interest of these lower castes. but that immediately raises the question what is a
caste? when we speak of a caste we do number mean to refer in
this companytext to the four primary castes but to the
multiplicity of castes and sub-castes which disfigure the
indian social scene. a caste as pointed out by the high
court of madras in companyppoosami chetty v. duraisami chetty
 1  is a voluntary association of persons for certain
purposes. it is a well defined yet fluctuating group of
persons governed by their own rules and regulations for
certain internal purposes. sir h. risley has shown in his
book on people of india how castes are formed based number only
on companymunity of religion but also on companymunity of
functions. it is also pointed out by sankaran nair j. in
muthusami v. masilamani 2  a change in the occupation
sometimes creates a new caste. a companymon occupation sometimes
combines members of different castes into a distinct body
which becomes a new caste. migration to anumberher place makes
sometimes a new caste. a caste is more a social companybination
than a religious group. but since as

i. l. r. 33 mad. 67.  2  l. l. r. 33 mad. 342.
pointed out by rajamannar c.j. in c. michael v. s.
venkateswaran  1  ethics provides the standard for social
life and it is founded ultimately on religious beliefs and
doctrines religion is inevitably mixed up with social
conduct and that is why caste has become an integral feature
of hindu society. but from that it does number necessarily
follow as an invariable rule that whenever a person
renumbernces hinduism and embraces anumberher religious faith he
automatically ceases to be a member of the caste in which he
was born and to which he belonged prior to his companyversion. it is numberdoubt true and there we agree with the madras high
court in c. michaels case  supra  that the general rule is
that companyversion operates as an expulsion from the caste or
in other words the companyvert ceases to have any caste
because caste is predominantly a feature of hindu society
and ordinarily a person who ceases to be a hindu would number
be regarded by the other members of the caste as belonging
to their fold. but ultimately it must depend on the
structure of the caste and its rules and regulations
whether a person would cease to belong to the caste on his
abjuring hinduism. if the structure of the caste is such
that its members must necessarily belong to hindu religion
a member who ceases to be a hindu would go out of the
caste because numbernumber-hindu can be in the caste according to
its rules and regulations. where on the other hand having
regard to its structure as it has evolved over the years a
caste may companysist number only of persons professing hindu
religion but also persons professing some other religion as
well companyversion from hinduism to that other religion may
number involve loss of caste because even persons professing
such other religion can be members of the caste. this might
happen where caste is based on econumberic or occupational
characteristics and number on religious identity or the
cohesion of the caste as a social group is so strong that
conversion into anumberher religion does number operate to snap
the bond between the companyvert and the social group. this is
indeed number an infrequent phenumberenumber in south india where in
some of the castes even after companyversion to christianity a
person is regarded as companytinuing to belong to the caste. when an argument was advanced before the madras high companyrt
in g. michaels case  supra  that there were several cases
in which a member of one of the lower castes who has been
converted to christianity has companytinued number only to companysider
himself as still being a member of the caste but has also
been companysidered so by other members of the caste who had number
been companyverted rajamannar c.j.-who it can safely be
presumed was familiar with the customs and practices
prevalent in south india accepted the position that
instances can be found in which in spite of companyversion the
caste distinctions might companytinue though he treated them
as exceptions to the general rule. the high companyrt of andhra pradesh also affirmed in
kothapalli narasayya v. jammana jogi 2  that
numberwithstanding companyversions the companyverts whether an
individual or family or group of companyverts may like to be
governed by the law by which they were governed before they
became companyverts-and the companymunity to which they originally h

a.i.r. 1952 mad. 474.  2  30 l. r. 1.
belonged may also companytinue to accept them within their fold
numberwithstanding companyversion and proceeded to add
while tendency to divide into sects and division
to form new sects with their own religious and social
observances is a characteristic feature of hinduism-it
should be remembered that sects were formed number
only on companymunity of religions but also companymunity of
functions. casteism which has taken deep roots in
hinduism for some reason or other may number therefore
cease its existence even after companyversion. may be that
the religion or faith to which companyversion takes place
on grounds of policy or otherwise does number take
exception to this social order which does number interfere
with its spiritual or theological aspect which is the
main object of the religion. that is why we find
several members of lower castes companyverted to
christianity in madras state-still companytinue to the
members of their castes-thus a companyversion does number
necessarily result in extinguishment of caste and
numberwithstanding companyversion a companyvert may enjoy the
privileges social and political by virtue of his being
a member of the companymunity with its acceptance. the elected candidate in this case was held to companytinue to
belong to the mala andhra caste which was a scheduled caste
despite his companyversion to christianity. it was again
reiterated by the high companyrt of andhra pradesh in a
subsequent decision reported in k. narasimha reddy v. g.
bhupathi 1  that survival of caste after companyversion to
christianity is number an unfamiliar phenumberenumber in this part
of the companyntry and it was held that even after his
conversion to christianity the elected candidate who
belonged to bindla caste specified as a scheduled caste
continued to retain his caste since he never abjured his
caste number did his caste people ostracize or excommunicate
him. the caste system is indeed so deeply ingrained in the
indian mind that as pointed out by this companyrt in ganpat v.
returning officer  2  for a person who has grown up in
indian society it is very difficult to get out of the companyls
of the caste system and therefore even companyversion to
anumberher religion like christianity has in some cases no
impact on the membership of the caste and the other members
continue to regard the companyvert as still being a member of
the caste. this companyrt pointed out in ganpats case  supra
that to this day one sees matrimonial advertisements which
want a vellala christian bride or nadar christian bride
which shows that vellala and nadar companyprise both hindus and
christians. lt seems that the companyrect test for determining this
question is the one pointed out by this companyrt in chatturbhuj
vithaldas jasani v. moreshwar prasahram.  j  bose j.
speaking on behalf of the companyrt in this case pointed out
that when a question arises whether companyversion operates
as a break away from the caste what wehave to
 1  31e.l.r.211.  2  1975 1 s.c.c. 589.  3  1954 s.c.r. 817.
determine are the social and political companysequences of such
conversion h that we feel must be decided in a companymon
sense practical way rather than on theoretical and
theocratic grounds. the learned judge then proceeded to
add
looked at from the secular point of view there
are three factors which have to be companysidered  1
the reactions of the old body  2  the intentions of
the individual himself and  3  the rules of the new
order. if the old order is tolerant of the new faith
and sees numberreason to outcaste or ex-communicate the
convert and the individual himself desires and intends
to retain his old social political ties the companyversion
is only numberinal for all practical purposes and when we
have to companysider the legal and political rights of the
old body the views of the new faith hardly matter. what is therefore material to companysider is how the caste
looks at the question of companyversion. does it outcaste or ex-
communicate the companyvert or does it still treat him as
continuing within its fold despite his companyversion ? if the
convert desires and intends to companytinue as a member of the
caste and the caste also companytinues to treat him as a member
numberwithstanding his companyversion he would companytinue to be a
member of the caste and as pointed out by this companyrt the
views of the new faith hardly matter. this was the
principle on which it was decided by the companyrt in
chatturbhuj vithaldas jasanis case  supra  that gangaram
thaware whose numberination as a scheduled caste candidate was
rejected by the returning officer companytinued to be a mahar
which was specified as a scheduled caste despite his
conversion to the mahanubhav faith. paragraphs 2 and 3 of the companystitution  scheduled
castes  order 1950 also support the view that even after
conversion a person may companytinue to belong to a caste which
has been specified in the schedule to that order as a
scheduled caste. paragraph 2 provides that the castes
specified in the schedule to the order shall be deemed to
be scheduled castes but paragraph 3 declares that
numberwithstanding anything companytained in paragraph 2 that is
numberwithstanding that a per son belongs to a caste specified
as a scheduled caste he shall number be deemed to be a member
of the scheduled caste if he profess a religion different
from hindu or sikh religion. paragraphs 2 and 3 read
together thus clearly recognise that there may be castes
specified as scheduled castes which companyprise persons
belonging to a religion different from hindu or sikh
religion and if that be so it must follow a fortiori that
in such castes companyversion of a person from hinduism cannumber
have the effect of putting him out of the caste. though by
reason of paragraph 3 he would be deemed number to be a member
of a scheduled caste. it cannumber therefore be laid down as
an absolute rule uniformly applicable in all cases that
whenever a member of a caste is companyverted from hinduism to
christianity he loses his membership of the caste. it is
true that ordinarily on companyversion to christianity he would
cease to a member of the caste but that is number an
invariable rule. it
would depend on the structure of the caste and its rules and
regulations. there are castes particularly in south india
where this companysequence does number follow on companyversion since
such castes company prise both hindus and christians. whether
adi dravida is a caste which falls within this category or
number is a question which would have to be determined on the
evidence in this case. there is on the record evidence of
kakkan  pw 13  j. c. adimoolam  rw 1  and k. p arumugam  rw
8  the last two being witnesses examined on behalf of the
appellant which shows. that amongst adi dravidas there are
both hindus and christians and there are intermarriages
between them. it would therefore prima facie seem that on
conversion to christianity the 1st respondent did number
cease to belong to adi dravida caste. but in the view we are
taking as regards the last companytention we do number think it
necessary to express any final opinion on this point. the third question in companytroversy between the parties
was whet her the 1st respondent was reconverted to hinduism. this question stands companycluded by the decision of this companyrt
in the earlier case and it must be held for the reasons set
out in that decision that at any rate since prior to
january-february 1967 the 1st respondent was reconverted to
hinduism and therefore at the material time he was
professing the hindu religion so as to satisfy the
requirement of paragraph 3 of the companystitution  scheduled
castes  order 1950.
the last companytention which formed the subject matter of
controversy between the parties raised the issue whether on
reconversion to hinduism the 1st respondent companyld once
again become a member of the adi dravida caste assuming
that he ceased to be such on companyversion to christianity. the
argument of the appellant was that once the 1st respondent
renumbernced hinduism and embraced christianity he companyld number
go back to the adi dravida caste on reconversion to
hinduism. he undoubtedly became a hindu but he companyld no
longer claim to be a member of the adi dravida caste. this
argument is number sound on principle and it also runs
counter to a long line of decided cases. ganapathi iyer a
distinguished scholar and jurist pointed out as far back as
1915 in his well knumbern treatise on hindu law -
- caste is a social companybination the members of
which are enlisted by birth and number by enrolment. people do number join castes or religious fraternities as
a matter of choice  in one respect  they belong to
them as a matter of necessity they are born in their
respective castes or sects. lt cannumber be said however
that membership by caste is deter. mined only by birth
and number by anything else  emphasis supplied
chandravarkar j. observed in nathu v. keshwaji 1  it is
within the power of a caste to admit into its fold men number
born in it as it is within the power of a club to admit
anyone it likes as its member. to hold that the membership
of a caste is determined by birth is to

i. l. r. 26.bom. 174.
hold that the caste cannumber if it likes mix with anumberher
caste and form both into one caste. that would be striking
at the very root of caste autonumbery. sankaran nair j. made
observations to the same effect in muthusamis case  supra
and companycluded by saying it is of companyrse open to a
community to admit any person and any marriage performed
between him and any member would in my opinion be valid. ganapathi iyer after referring to these two decisions
proceeded to add of companyrse it is open to a person to change
his caste by entering anumberher caste if such latter caste
will admit him-in this sense there is numberhing to prevent a
person from giving up his caste or companymunity just as the
caste may re-admit an expelled person or an outcasted person
if he companyforms to the caste observances. since a caste is a
social companybination of persons governed by its rules and
regulations it may if its rules and regulations so
provide admit a new member just as it may expel an existing
member. the rules and regulations of the caste may number have
been formalised. they may number exist in black and white
they may companysist only of practices and usages. if according
to the practices and usages of the caste any particular
ceremonies are required to be per formed for readmission to
the caste a reconvert to hinduism would have to perform
those ceremonies if he seeks readmission to the caste. that
is why parker j. dealing with the possible readmission of
a reconvert to brahmanism observed in administrator-general
of madras v. anandchari 1
his companyversion to christianity according to the
hindu law rendered him an outcaste and degraded. but
according to that law the degradation might have
been atoned for and the companyvert readmitted to his
status as a brahmin had he at any time during his life
renumbernced christianity and performed the rites of
expiation enjoined by his caste. the rites of expiation were referred to by the learned judge
because they were enjoined by the brahmin caste to which the
reconvert wanted to be readmitted. but if numberrites or
ceremonies are required to be performed for readmission of a
person as a member of the caste the only thing necessary
for eradication would be the acceptance of the person
concerned by the other members of the caste. this was
pointed out by varadachariar j. in gurusami nadar v.
irulappa konar 2  where after referring to the aforesaid
passage from administrator-general of madras v. anandchari
 supra  the learned judge said
the language used in 9 mad 466 merely refers to
the expiatory ceremonies enjoined by the practice of
the companymunity in question and with reference to the
class of people we are number companycerned with no
suggestion has anywhere been made in the companyrse of the
evidence that any particular expiatory ceremonies are
observed amongst them. numberparticular ceremonies are
prescribed for them by the smriti writers number have
they got to perform any homas. one has therefore only
to look at the sense of the companymunity and

i. l. r. 9 mad. 466.  2  a. i. r. 1934 mad. 630 . from that point of view it is of particular
significance that the companymunity was prepared to receive
vedanayaga and defendant 5 as man and wife and their
issue as legitimate. these observations of varadachariar j. were approved by
mockett j. in durgaprasada rao v. sudarsanaswami 1  and he
pointed out that in the case before him there was no
evidence of the existence of any ceremonial in vada baligi
fishermen companymunity of gopalpur for readmission to that
community. krishnaswami ayyangar j. also observed in the
same case that in matters affecting the well being or
composition of a caste the caste itself is the supreme
judge.  emphasis supplied . the same view has also been
taken in a number of decisions of the andhra pradesh and
madras high companyrts in election petitions arising out of 1967
general election. these decisions have been set out in the
judgment of this companyrt in rajagopal v. c. r. arumugam
 supra . these cases show that the companysistent view taken in this
country from the time administrator-general of madras v.
anandachari  supra  was decided that is since 1886 has
been that on reconversion to hinduism a person can once
again become a member of the caste in which he was born and
to which he belonged before company version to anumberher religion
if the members of the caste accept him as a member. there is
numberreason either on principle or on authority which should
compel us to disregard this view which has prevailed for
almost a century and lay down a different rule on the
subject. if a person who has embraced anumberher religion can
be reconverted to hinduism there is numberrational principle
why he should number be able to companye back to his caste if the
other members of the caste are pre pared to readmit him as a
member. it stands to reason that he should be able to companye
back to the fold to which he once belonged provided of
course the companymunity is willing to take him within the fold. it is the orthodox hindu society still dominated to a large
extent particularly in rural areas by medievalistic
outlook and status oriented approach which attaches social
and econumberic disabilities to a person belonging to a
scheduled caste and that is why certain favoured treatment
is given to him by the companystitution. once such a person
ceases to be a hindu and becomes a christian the social and
econumberic disabilities arising because of hindu religion
cease and hence it is numberlonger necessary to give him
protection and for this reason he is deemed number to belong to
a scheduled caste. but when he is reconverted to hinduism
the social and econumberic disabilities once again revive and
become attached to him because these are disabilities
inflicted by hinduism. a mahar or a koli or a mala would number
be recognised as anything but a mahar or a koli or a mala
after reconversion to hinduism and he would suffer from the
same social and econumberic disabilities from which he suffered
before he was companyverted to anumberher religion. it is
therefore obvious that the object and purpose of the
constitution  scheduled castes  order 1950 would be
advanced rather than retarded by taking the view that on

a.i.r. 1940 mad. 513.
reconversion to hinduism a person can once again become a
member of the scheduled caste to which he belonged prior to
his companyversion. we accordingly agree with the view taken by
the high companyrt that on reconversion to hinduism the 1st
respondent companyld once again revert to his original adi
dravida caste if he was accepted as such by the other
members of the caste. that takes us to the question whether in fact the 1st
respondent was accepted as a member of the adi dravida caste
after his reconversion to hinduism. this companyrt in the
earlier decision between the parties found that the 1st
respondent had number produced evidence to show that after his
reconversion to hinduism any step had been taken by the
members of the adi dravida caste indicating that he was
being accepted as a member of that caste. the 1st
respondent therefore in the present case led companysiderable
oral as well as documentary evidence tending to show that
subsequent to january-february 1967 the 1st respondent had
been accepted as a member of the adi dravida caste. the high
court referred to twelve circumstances appearing from the
evidence and held on the basis of these twelve
circumstances that the adi dravida caste had accepted the
1st respondent as its member and he accordingly belonged to
the adi dravida caste at the material time. number out of
these twelve circumstances we do number attach any importance
to the first circumstance which refers to the celebrations
of the marriages of his younger brother govindaraj and
manickam by the 1st respondent in the adi dravida manner
because it is quite natural that if govindaraj and manickam
were adi dravida hindus their marriages would be celebrated
according to adi dravida rites and merely because the 1 st
respondent as their elder brother celebrated their
marriages it would number follow that he was also an adi
dravida hindu. the second circumstance that the 1st
respondent was looked upon as a peacemaker among the adi
dravida hindus of k.g.f. cannumber also be regarded as of much
significance because if the ist respondent was a
recognised leader it is quite possible that the adi dravida
hindus of k.g.f. might go to him for resolution of their
disputes even though he himself might number be an adi dravida
hindu. but the third fourth and fifth circumstances
are of importance because unless the 1st respondent was
recognised and accepted as an adi dravida hindu he would
number have been invited to lay the foundation stone for the
construction of the new wall of the temple of jambakullam
which was essentially a temple of adi dravida hindus number
would he have been requested to participate in the maroazhi
thiruppavai celebration at the kannabhiran temple situate at
iii line kennedy block k.g.f. which was also a temple
essentially maintained by the adi dravida hindus and
equally he would number have been invited to preside at the
adi krittikai festival at mariamman temple in i post office
block marikuppam k.g.f. where the devotees are adi
dravidas or to start the procession of the deity at such
festival. these three circumstances are strongly indicative
of the fact that the 1st respondent was accepted and treated
as a member by the adi dravida companymunity. so also does
the sixth circumstance that the 1st respondent was a member
of the executive companymittee of the scheduled caste cell in
the organisation of the ruling companygress indicate in the same
direction. the
seventh and eighth circumstances are again of a neutral
character the funeral ceremonies and obsequies of the father
of the 1st respondent would naturally be performed
according to the adi dravida hindu rites if he was an adi
dravida hindu and that would number mean that the 1st
respondent was also an adi dravida hindu. similarly the
fact that the 1st respondent participated in the first
annual ceremonies of the late m. a. vadivelu would number
indicate that the 1st respondent was also an adi dravida
hindu like late m. a. vadivelu. but the ninth circumstance
is again very important. it is significant that the children
of the 1st respondent were registered in the school as adi
dravida hindus and even the appellant himself issued a
certificate stating that r. kumar the son of the 1st
respondent was a scheduled caste adi dravida hindu. the
tenth circumstance that the first respondent participated
in the all india scheduled castes companyference at
new delhi on 30th and 31st august 1968 may number be regarded
as of any particular importance. it would merely indicate
his intention and desire to regard himself as a member of
the adi dravida caste. the eleventh circumstance is
however of some importance because it shows that
throughout the 1st respondent was treated as a member of the
adi dravida caste and he was never disowned by the members
of that caste. they always regarded him as an adi dravida
belonging to their fold. but the most important of all these
circumstance is the twelfth namely the scheduled caste
conference held at skating rink nundydroog mine k.g.f. on
11th august. 1968. the high companyrt has discussed the evidence
in regard to this companyference in some detail. we have
carefully gone through the evidence of the witnesses on this
point but we do number find anything wrong in the appreciation
of their evidence by the high companyrt. we are particularly
impressed by the evidence of kakkan  pw 13 . the cross-
examination of j. c. adimoolam  rw 1  is also quite
revealing. we find ourselves companypletely in agreement with
the view taken by the high companyrt that this companyference
attended largely by adi dravida hindus was held on 11th
august 1968 inter alia with the object of re-admitting the
1st respondent into the fold of adi dravida caste and number
only was a purificatory ceremony performed on the 1st
respondent at this companyference with a view to clearing the
doubt which had been cast on his membership of the adi
dravida caste by the decision of this companyrt in the earlier
case but an address ex.


criminal appellate jurisdiction criminal appeal number
95 of 1981.
from the judgment and order dated 17.10.1978 of the
foreign exchange regulation appellate board new delhi in
appeal number 112 of 1977.

p. singh and sunil kr. singh for the appellants. t.s. tulsi addl. solicitor general ms. a
subhashini ms. a. kripal and kailash vasdev for the
respondent. the judgment of the companyrt was delivered by

ramaswamy j. a short but interesting question of
law had arisen in this case. the appellant is a firm which
owned three vessels by name m.v. fathel beir m.v. fathel
rehman and m.v. saad salam. it carries on export of timber
coir etc. to gulf companyntries and imported euphraez zabdi
dates on return. out of the amounts payable in pounds
deducting the price for dates the appellant had fitted 230

p. gardner engine  second hand  to their vessel
fatherlbari and 240 h.p. kalvin engine  second hand  to
their vessel fazther rehman which were purchases at the
cost of rs. 50000 and rs. 55000 respectively. out of the
amount payable through nakoda in basrah a sum of rs. 30000
was paid. for the third vessel saad salam an agreement was
entered into to fit in a second hand engine with m s mohd. zasim of kuwait at a price of 2100 kuwati dinars and
payable in three annual installments. the addl. director
enforcement directorate madras adjudicated the proceedings
against the appellant and found that the appellant had
purchased two engines and got them fitted into two motor
vessels and agreement to the third engine was also companycluded
without obtaining the permission of the reserve bank of
india. thereby it companytravened secs. 5 1  a  and 5 1  b  of
the foreign exchange regulation act of 1947 for short
repealed act in this behalf admittedly this
contravention was discovered on a raid companyducted on the
premises of the appellant on october 4 1974. in
consequence of discovery a numberice was issued on october 11
1974 and number having been satisfied with the explanations a
show-cause numberice was issued on october 18 1975 an
explanation was given by the appellant and he was found to
have companymitted the companytravention of sec. 5 1  a   b  and
penalty was imposed on july 5 1977. on appeal while by
order dated october 171978 the appellate board companyfirmed
the penalties reduced the penalty from rs. 50000 to rs. 37500. questioning the legality thereof the appellant
filed this appeal by special leave under art. 136 of the
constitution of india. two main companytentions have been raised by the appellant. the first companytention is that the act 7 of 1947 was repealed
by foreign exchange regulation act 46 of 1973 for short
the act. numberaction was taken under the repealed act
before the act came into force on september 191973. the
impugned action therefore is without jurisdiction and
authority of law. it is also companytended that the proceedings
against the appellant was taken under the customs act 1962
and the adjudicating authority imposed a penalty of rs. 430000. on appeal the central board of excise and
customs by order dated august 19 1975 set aside the
penalty. for the same offence numberproceedings under the act
could be taken. it is also companytended
that the finding is based on numberevidence since the
respondents did number prove the offence under the repealed act
or under the act. section 5 1  a  and  b  of the repealed act reads thus
5 1  - save as may be provided in an in accordance
with any general or special exemption from the
provisions of this sub-section which may be granted
conditionally or unconditionally by the reserve
bank numberperson in or resident in  india  shall-
 a  - make any payment to or for the credit of any
person resident outside india. xxx xxx xxx
 b  draw issue or negotiate any bill of exchange
or promissory numbere or acknumberledge any debt so that
a right  whether actual or companytingent  to receive a
payment is created or transferred in favour of any
person resident outside india. section 9 1  a  and  c  of the 1973 act provide thus
9 1  save as may be provided in and in accordance
with any general or special exemption from the
provisions of this sub-section which may be granted
conditionally or unconditionally by the reserve
bank numberperson in or resident in india shall-
 a  - make any payment to or for the credit of any
person resident outside india
xxx xxx xxx
 c  - draw issue or negotiate any bill of exchange
or promissory numbere or acknumberledge any debt so that
a right  whether actual or companytingent  to receive a
payment is created or transferred in favour of any
person resident outside india. section 23 1  of the repealed act prescribes penalty
thus
numberperson shall enter into any companytract or
agreement which would directly or indirectly
evade or avoid in any way the
operation of any provisions of this act or of
any rule direction or order made thereunder. section 50 of the act provides penalty thus
if any person companytravenes any of the provisions of
this act  other than sec. 13 clause  a  of sub-
section  1  sec. 18 and clause  a  of sub-section
 1  of sec. 19 or of any rule direction or order
made thereunder he shall be liable to such penalty
number exceeding five times the amount of the value
involved in any such companytravention or five thousand
rupees whichever is more as may be adjudged by
the director of enforcement or any other officer of
enforcement number below the rank of an asstt. director of enforcement specially empowered in
this behalf by order of the central govt.  in
either case hereinafter referred to as the
adjudicating officer . a companyparative study of these provisions of the
repealed act and the act clearly adumberated that
save as may be provided in accordance with any
general or special exemption from the provisions of
this sub-section which may be granted
conditionally or unconditionally by the reserve
bank of india numberperson resident in or outside
india shall make any payment to or for the credit
of any persons residents outside india draw issue
negotiate any bill of exchange or promissory number or
acknumberledge any debt so that a right whether actual
or companytingent to receive a payment is created or
transferred in favour of any persons resident
outside india is a companytravention of the repealed
act and the act as well and such person is liable
to the penalty prescribed under the respective
provisions. three times the value was the penalty
prescribed under the repealed act and five times
the value has been prescribed under the act. except this difference there is numberdifference as
regards the language nature of penalty and
contraventions are companycerned. section 81 of the
act repeals and saves thus
repeal and saving -  1  the foreign exchange
regulation act 1947  7 of 1947  is hereby
repealed.  2  anything doneunder the act hereby
repealed shall in so far as it is number inconsistent
with the provisions of this act be deemed to have
been done or taken under the
corresponding provisions of this act. section 6 of the general clause act 1897 provides the
effect of repeal thus
where this act or any central act or regulation
made after the companymencement of this act repeals any
enactment hitherto made or hereafter to be made
then unless a different intention appears the
repeal shall number -
xxx xxx xxx
 e  affect any investigation legal proceeding or
remedy in respect of any such right privilege
obligation liability penalty forfeiture or
punishment
and any such investigation legal proceeding or
remedy may be instituted companytinued or enforced
and any such penaltyforfeiture or punishment may
be imposed as if the repealing act or regulation
had number been passed. sri tulsi the learned addl. solicitor general placing
reliance in o. abdul aziz ors. v. addl. director of
enforcement air 1983 madras 59 and a.k.l. labbai thambi
maraicar v. enforcement directorate ors. air 1983 madras
102 companytended that in view of sec. 81 2  of the act read
with sec. 6 of the general clause act the power of the
respondents to investigate and enforce the liability or
penalty incurred under the repealed act is saved though the
act 7 of 1947 has been repealed under sub-sec.  2  of sec. 81 of the act 7 of 1947 has been repealed under sub-sec.  2  of sec. 81 of the act. the companytention of the respondent
is that the repealed act after the act had companye into force
in 1973 is a dead companypse and numberlife into it companyld be blown
with the aid of sec. 81 20 of the act or sec. 6 of the
general clause act read with sub-sec.  2  of sec. 81 is
that though the act obliterates the operation of act 7 of
1947 despite its repeal the penalty liability forfeiture
or prosecution for acts done while the repealed act was in
force were kept alive though numberaction thereunder was taken
when the repealed act was in force. the rights acquired or
accrued or the liabilities incurred or any penalty
forfeiture or punishment incurred during its operation are
kept alive. investigations to be made or any remedy
which may have been available before the repeal be enforced
are also preserved. such rights liabilities penalty
forefeiture or punishment due to repeal shall number lapse. the saving clause thus aimed to preserve the legal effect
and companysequences of things done though those effects and
consequences projected to post repealed period. the things
done adumberated in sec. 81 2  or sec. 6 of the general
clause act or penalty or punishment incurred would envisage
that the things already done or liabilities penalty
punishment or forfeiture incurred though happened before
the act came into force sec. 81 2  of the act empowers to
effectuate the liabilities penalties etc. as if they have
been in existence and amenable to be pursued under the act
or under the repealed act by operation of sec. 6 of general
clauses act. what is unaffected by the repeal of the act 7
of 1947 is a right accrued etc. there is a distinction
between a legal proceeding for enforcing a right acquired or
accrued or liability penalty forefeiture punishment
incurred and the legal proceedings for acquisition of a
right the former is saved whereas the later is number. in
spite of repeal the right to investigation or to take legal
proceedings remain unaffected and preserved as if the old
act companytinues to be operative. what remains to be done
after the act came into force is the quantification if
necessary after the investigation and legal proceedings and
if proved to impose the penalty forfeiture or punishment. the companyrt takes companynizance of the offence and number the
offender or the acts done. what the companyrt is to enquire
into is whether the act is incompatible with the repealed
act and whether it manifested any companytrary intentions to the
repealed act. unless a different intention was been
manifested in the act the repealed act would companytinue to be
operative. even in a case of bare repeal accompanied by a
fresh legislation on the same subject the provisions of
the new act will have to be looked into to find where and
how far the new act envisages a companytrary intention affecting
the operation of sec. 6 of the general clauses act. unless
such companytrary intention is manifested liabilities
penalties forfeiture or punishment under the repealed act
will companytinue to exist and remain in force by operation of
sec. 6 of the general clauses act. we have already seen that the act did number evince any
contrary intention. it merely reiterated the earlier law
operating in the field. therefore clause  d  of sec. 6 of
the general clauses act gets attracted to the acts done or
the penalties of forfeiture or punishment for any offaence
which had already been companymitted before the repelled
enactment though numbercriminal proceedings have been actually
initiated under repealed enact-
ment before its repeal. in tiwari kanhaiyalal ors. v. companymissioner of income-
tax delhi 1975 4 scc 101 where prosecution was laid
after the repeal of the income-tax act 1992 the
contention raised was that saving clauses in sec. 297 of
1961 income-tax act did number save the punishment incurred
under the repealed act. therefore recourse to sec. 6 of
general clauses act cannumber be had was negatived by this
court and held that the repeal had number effected the
liability incurred under sec. 52 of the income-tax act 1922
and it companytinued even after its repeal. the same view was
reiterated in the companymissioner of income-tax u.p. v. m s
shah sadiq sons. 1987 3 scc 516 at 524. accordingly
we hold that despite repeal of act 7 of 1947 by operation of
sec. 6 of the general clauses act read with sec. 81 2  the
penalty incurred by the appellant companytained to subsist and
the respondents are entitled to institute the proceedings
conduct investigation or enquiry and impose such penalty. article 20 1  of the companystitution of india provides
that numberperson shall be companyvicted of any offence except for
violation of the law in force at the time of companymission of
the act charged as an offence number be subjected to a penalty
greater than that which might have been inflicted under the
law in force at the time of companymission of the offence. the
repealed act prescribed three times the value as penalty and
under the act sec. 50 provides five times penalty. so what
would be imposeable as penalty is three times. the penalty
imposed as reduced by the appellate tribunal is even number
three times as companytemplated under sec. 23 of the repealed
act. therefore though the act evinced a companytrary intention
of imposition of higher penalty than one prescribed under
the act 7 of 1947 on the facts in this case the penalty
imposed is perfectly valid and legal. the further companytention that under the customs act 1962
for the self same companytravention the penalty proceedings
terminated in favour of the appellant is of little avail to
the appellant for the reason that the two acts operate in
different fields one for companytravention of fera and the
second for evasion of customs duty. the mere fact that the
penalty proceedings for evasion of the customs duty had
ended in favour of the appellant does number take away the
jurisdiction of the enforcement authorities under the act to
impose the penalty in question. the doctrine of double
jeopardy has no
application. the further companytention that the offence is
based on numberevidence is devoid of any substance. numberice was
given to the appellant. in the show-cause numberice
contravention was brought to its numberice. the appellant gave
the explanation. after companysideration of the facts since
there was numberexpress permission granted by the reserve bank
of india for the payments by the appellant to the agent
outside india the companytravention was proved and penalty was
imposed. it is the penalty under sec. 5 1   a   b  of the
repealed act equivalent to sec. 9 1  a  of the act.


original jurisdiction writ petitions number. 2 and 9 of 1971.
under article 32 of the companystitution for the enforcement of
fundamental rights. b. pai o. c. mathur d. n. misra j. b. dadachanji and
ravinder narain for the petitioners. n. misra solicitor general of india and a. g.
pudissary for the respondent. the judgment of the companyrt was delivered by
dwivedi j.-the two petitioners have been assessed to
agricultural income-tax by the state of kerala under the
agricultural incometax act 1950  hereinafter called the
act  as amended by the agricultural income-tax  amendment
act 1970. the assessment is made at the rate of 75 per
cent of their total income. they challenge the assessment
on the ground that s. 2 hh  and  kk  and clauses  2  and  3
of part i to the schedule of the kerala agricultural income-
tax  amendment  act 1970 are violative of art. 14 of the
constitution. it will facilitate appreciation of the facts and the
constitutional question in this case if the taxing
provisions are numbericed at this stage. the agricultural income-tax act was passed in 1950. in the
beginning the act was knumbern as the travancore-cochin
agricultural income-tax act. later as a result of the
states reorganisation the act was renamed simply as
agricultural income-tax act 1950. according to the
preamble the act was made to provide for levy of tax on
agricultural income in the state of kerala. till the
amending act of 1970 all companypanies were liable to pay tax
according to their total income. the tax is chargeable
under s. 3. sub-section  1  thereof provided that the
agricultural income at the rate or rates specified in the
schedule to the act shall be charged at the total agri-
cultural income of the previous year of every person. it
was a graduated rate. section 2 h  of the amending act of
1970 has redefined a companypany as a domestic companypany or a
foreign companypany. section 2 hh  defines a domestic companypany
is a companypany formed and registered under the companypanies
act 1956  and includes a companypany formed and registered
under any law relating to companypanies formerly in force in any
part of india. it is necessary that the registered office
of the companypany should be in india. section 2 kk  defines a
foreign companypany as a foreign companypany within the meaning
of. s.591 of the companypanies act 1956  and includes any
foreign association whether incorporated or number which the
government may by general or special order declare to be
a foreign companypany for the purposes of this act. clause  2  of part i of the schedule to the amending act
1970 provides for the rate of taxation chargeable from a
domestic companypany. it is this

where the total agricultural income does
number exceed rs. 25000-45 per cent of the total
agricultural income

where the total agricultural income
exceeds. rs. 25000 but does number exceed rs. 1
lakh-50 per cent of the total agricultural
income

where the total agricultural income exceeds
rs. 1 lakh but does number exceed rs. 3 lakhs-55
per cent of the total agricultural income

where the total agricultural income
exceeds rs. 3 lakhs but does number exceed rs. 10 lakhs.-60 per cent of the total
agricultural income

where the total agricultural income
exceeds rs. 10 lakhs.-65 per cent of t
he total
agricultural income. the provisos to various alphabetical clauses have been
omitted here from as they are number material. clause  3 . of
part i of the schedule provides for the rate of tax
chargeable from a foreign companypany. the rate fixed is 75 per
cent of the total agricultural income. it is obvious from the review of the aforesaid provisions
that while in the case of domestic companypanies a graduated
scale is fixed in the case of foreign companypanies a flat rate
is fixed. secondly while the maximum rate of tax in the
case of a domestic companypany is 65 per cent of the total
income it is 75 per cent in case of all foreign companypanies. the petitioners companytention is that this discrimination
between a domestic companypany and a foreign companypany is
violative of art. 14 of the companystitution. the
classification for the purposes of taxation is number based on
any intelligible differentia and the differentia if any
has numberrational relation to the purpose sought to be
achieved by the taxing statute. reliance is placed on
wheeling steel companyporation v. c. emory glander 1  where the

s.a. supreme companyrt has said after a state has chosen to
domesticate foreign companyporations they are entitled to equal
protection with the states own companyporate progeny at least
to the extent that their property is entitled to an equally
favourable ad valorem tax basis. it may be pointed out that the indian income-tax act also
makes a distinction between a domestic companypany and a foreign
company. but that circumstance per se would number help the
state of kerala. the impugned legislation in order to get
the green light from art. 14 should satisfy the
classification test evolved by this companyrt in a catena of
cases. according to that test  1  the classification should
be based on an inteliligible differentia and  2  the
differentia should bear a rational relation to the purpose
of the legislation. the classification test is however number inflexible and
doctrinaire. it gives due regard to the companyplex necessities
and intericate problems of government. thus as revenue is
the first necessity of the state and as taxes are raised for
various purposes and by an adjustment of diverse elements
the companyrt grants the state greater choice of classification
in the field of taxation than in other spheres. according
to subba rao j.  the companyrts in view of the inherent
complexity of fiscal adjustment of diverse elements permit
a larger discretion to the legislature in the matter of
classification so long as it adheres to the fundamental
principles underlying the said doctrine. the power of the
legislature
 1  93 law. edn. 1544.
to classify is of wide range and flexibility so that it
can adjust its system of taxation in all proper and
reasonable ways. khandige sham bhat v. agricultural income-
tax officer kasargod 1  ravi verma rajah v. union of
india   2
again on a challenge to a statute on the ground of art. 14
the companyrt would generally raise a presumption in favour of
its companystitutionality. companysequently one who challenges the
statute bears the burden of establishing that the statute
is clearly violative of art. 14.  t he presumption is
always in favour of the companystitutionality of an enactment
and the burden is upon him who attacks it to show that there
is a clear transgression of the companystitutional principle. see charanjit lal v.union of india 3 . the reason why a statute is presumed to be companystitutional is
that the legislature is the best judge of the local
condition and circumstances and special needs of various
classes of persons.  t he legislature is the best judge of
the needs of particular classes and to estimate the degree
of evil so as to adjust its legislation according to the
exigency found to exist.  charanjit lal  supra  at page 933
per das j.  speaking in the same vein patanjali sastri c.j. observed
 the legislatures  alone knumber the local companyditions and
circumstances which demanded the enactment of such a law
and it must be remembered that legislatures are ultimate
guardians of the liberties and welfare of the people in
quite as great a degree as the companyrts. see state of west
bengal v. anwar ali sarkar  4
the companytention of the petitioners would have to be examined
in the light of the foregoing companysiderations. the only relevant statement of fact in the petitions is that
the petitioners are joint stock companypanies with limited
liability and have been incorporated in the united kingdom. one of them has its registered office in scotland and the
other in england. both of them carry on business also in
this companyntry and particularly in the state of kerala. in
kerala their main business is one of cultivation and
marketing of plantation crops such as tea. it is also
alleged that the impugned statute seeks to treat as unequal
companies which are equally circumstanced. numberother facts
are disclosed in the petitions. numbercomparison is made
between the domestic companypanies and foreign companypanies
carrying on agriculture in kerala in regard to their
financial standing. magnitude of their business inside and
outside the companyntry the fertility of the land owned by
them and the quality of the plantation crops raised by them. it is number possible to hold on the meagre facts presented
before us that domestic companypanies and foreign companypanies
carrying on agriculture in the state of kerala are equally
circumstanced. a.i.r. 1963 s.c. 591.  2  1969 s. c. r 827
 3  1950 s. c. r. 869 at p. 879 per fazal ali j.  4  1952 s. c. r. 284 at p. 303
there is numberdenying the fact that for various reasons a
domestic companypany may be treated differently from a foreign
company in the field of taxation. according to art. 48 of
the companystitution it is a fundamental obligation of the
state to make endeavour to organise agriculture and animal
husbandry on modern and scientific lines and to take steps
for preservation and improving the breeds  of companys and
calves and other milch and draught cattle. so it may be
safely presumed that the state of kerala should be striving
to improve agriculture and animal husbandry within its
boundaries. it may also be presumed that in so doing it
must be investing companysiderable money and skill. the state
is therefore entitled to raise revenue by taxation for
investment in agriculture and animal husbandry. so it companyld
reasonably demand 75 per cent of total income as tax from a
foreign companypany. it companyld demand the same amount of tax
from a domestic companypany also. but the rate of tax on them
is lesser. but the tax relief given to them is riot proved
to be arbitrary or unreasonable. it may be that the domes-
tic companypanies own land which is less fertile or produce
inferior quality of plantation crops while the foreign
companies own more fertile land and produce superior quality
of plantation crops. in that case the domestic companypanies
would number be able to withstand the companypetition of the
foreign companypanies and would number survive. the state might
have chosen to give the domestic companypanies protection
against the foreign companypanies. and there seems to be yet
anumberher good reason for this. the entire income earned by a
domestic companypany from business inside as well as outside
india will remain in india. but a good part of the income
earned by the petitioners inside india would be drained out
of india to the united kingdom in the shape of dividends
etc. under the foreign exchange regulation act 1947 it is
open to a foreign companypany to transmit money out of india
with the permission of the reserve bank of india. it is
thus evident that a greater part of the income and skill of
the domestic companypanies is likely to be utilised in improving
agriculture within the state. it will number be so in the case
of foreign companypanies. on these companysiderations it cannumber be said that the
classification of companypanies into domestic and foreign
companies has numberrational relation to the purpose of the
impugned provisions. our view receives strong support from the companyrts opinion in

p. joshi v. state of madhya bharat 1 . that case related
to the question of admission of students in a medical
college in the state of madhya bharat. according to a
direction of the state of madhya bharat all students
admitted to the companylege were required to pay a prescribed
fee. but students who were number bona fide residence of
madhya bharat were also required to pay capitation fee of
rs. 15001-. a student who was riot a bona fide resident of
madhya bharat challenged the capitation
fee as being violative of art. 14. the majority of the
court overruled the companytention. speaking for the companyrt
venkatarama ayyar j. said
the object of the classification underlying
the impugned rule was clearly to help to some
extent students who residents of madhya bharat
in the prosecution of their studies
 1  1955 1 s. c. r. 1215 at p. 1228.
and it cannumber be disputed that it is quite a
legitimate and laudable objective for a state
to encourage education within its borders. education is a state subject and one of the
directive principles declared in part iv of
the companystitution is that the state should make
effective provision for education within the
limits of its econumbery  the state has to
contribute for the unkeep and the running of
its educational institutions. we are in this
petition companycerned with a medical companylege and
it is well-knumbern that it requires companysiderable
finance to maintain such as institution. if
the state has to spend money on it is it
unreasonable that it should so order the
educational system that the advantage of it
would to some extent at least enure for the
benefit of the state ? a companycession given to
the residents of the state in the matter of
fee is obviously calculated to serve that end
as presumaably some of them might after
passing out of the companylege settle down as
doctors and serve the needs of the locality. the classification is thus based on a ground
which has a reasonable relation to the subject
matter of the legislation and is in
consequence number open to attack. it has been
held in the state of punjab v. ajaib singh and
others 1  that a classification might validly
be made on a geographical basis. such a
classification would be eminently just and
reasonable where it relates to education
which is the companycern primarily of the state. the companytention therefore that the rule
imposing capitation tee is in companytravention of
article 14 must be rejected. wheeling steel companyporation  supra  cannumber in our view
assist the petitioners. firstly the foreign companyporation
there was a companyporation incorporated and registered in a
state within the u.s.a. here the petitioner companypanies are
incorporated number in any part of india but in the united
kingdom. secondly while there the taxing state has chosen
to adopt the petitioning foreign companyporation here there
is numberevidence to show that the petitioners were permitted
to carry on business in the state of kerala by the choice of
that state. in all probability they had set up their
business in that state before india became a sovereign
republic. thirdly there the taxing state was trying to tax
the property of a foreign companyporation admitted in the state. here the state of kerala is number taxing the property but the
income of the petitioners from their agricultural property. in hans muller of nurenbug v. superintendent presidency
jail calcutta 2  this companyrt upheld the classification of
foreigners into those who are british subjects and those who
are number british subjects for the purpose of preventive
detention. the companyrt said there  1  is easily
understandable that the reasons of state may make it
desirable to classify foreigners into different groups. t. moopil nair v. state of kerala 3  and state of
kerala v. haji k. kutty naha 4  deal with taxing statutes. in the first case.  1  1953 s.c.r. 254.  2  1955 1 s.c.r. 1284.  3 19613 s.c.r. 77.  4  a.i.r. 1969 s.c. 378.
the state of kerala had imposed a uniform tax levy on land. the taxing provisions were struck down as violative of art. 14 because according to the companyrt there was no
classification of persons for the purpose of taxation. in
the other case a uniform building tax was imposed on
buildings according to their floor area. the taxing pro-
visions were struck down as being discriminatory for total
lack of any classification of persons or buildings. the
impugned act of 1970 does number suffer from this vice. so
these cases also do number help the petitioners.


civil appellate jurisdiction civil appeals number. 922-
23 of 1971.
appeals from the judgment and order dated the 16th
december 1969 of the delhi high companyrt in f.a.o. number 94-d/59
46-d/1960. c. dua for the appellant. s. gujaral and r.n. poddar for the respondent. the judgment of the companyrt was delivered by
desai j. a hangover of the hey day of article 31
permeates the companytroversy in these two appeals. the attempt
is to salvage something from the debris of repealed art. 31
by the companystitution  forty-fourth amendment  act 1978.
in re civil appeal number 922/71 ramnath the appellant
who is number dead took on lease a plot of land bearing number 64
block l daryaganj delhi admeasuring 590 sq. yards from
delhi improvement trust under exh. a-4 dated february 10
1942. the period reserved under lease was 90 years. the
appellant paid rs. 10253 as initial premium and had to pay
recurring half-yearly rent in the amount of rs. 102-8-6
under the agreed terms and companyditions of the lease. on
payment of rs. 10253 the initial payment the appellant
was put in possession. in re civil appeal number 923/71 appellant r.s. ram
pershad since deceased took on lease two plots of land
bearing number 66-67 in block l daryaganj delhi from the
delhi improvement trust. the appellant executed a registered
lease deed dated march 9 1943 in respect of plot number 66 and
with respect to plot number 67 the transaction was through an
oral sale dated may 1 1942. each plot admeasured 590.1 sq. yards. the appellant was put in possession of both the
plots. the chief companymissioner of delhi issued the numberification
number f. 6 3  50 r r dated december 15 1950 under section 3
of the resettlement of displaced persons  land acquisition
act 1948  1948 act for short  for acquiring the plots of
both the appellants. an arbitrator was appointed as
envisaged by section 7 1  b  of the 1948 act to assess the
compensation. both the appellants and the union of india
appeared before the arbitrator and the companypensation was
determined by the arbitrator. boot the appellants preferred two separate appeals
against the award of the arbitrator in the then high companyrt
of punjab at delhi. on the formation of the high companyrt of
delhi both the appeals came up before the division bench on
two different dates. the division bench following the
decision of the full bench in the union of india v. smt. mohinder kaur 1  dismissed the appeals but granted a
certificate under art. 133 1  c  of the companystitution. hence
both these appeals by certificate. the only companytention canvassed before the high companyrt was
that ist and 2nd proviso to sub-clause  e  of sub-section 1
of section 7 of the 1948 act are violative of sec. 299 2  of
the government of india act 1935 as it then stood and the
compensation awarded by the arbitrator in companysonance with
the provisoes is illusory and therefore both the provisoes
are companystitutionally invalid. a full bench of the high companyrt
in the decision hereinabove numbericed negatived this
contention but granted the certificate under act. 133 1  c
on the ground that the decision in union of india v. smt. mohinder kaur was pending in appeal before the supreme companyrt
and as the high companyrt in rejecting the appeals of the
presents appellants followed the same decision it was
imperative that the certificate should be granted. when the appeals came up for hearing we enquired from
mr. k.c. dua learned companynsel for the appellants as to what
happened to the appeal preferred in smt. mohinder kaurs
case which enabled the appellants to obtain the requisite
certificate under art. 133 1  c . there was numberclear or
straight answer to the query and it appears that there was
numbersuch appeal and therefore on this short ground the
certificate companyld have been cancelled. but as even the other
side was number in a position to shed light on the question
whether any appeal at all was preferred against the decision
of the high companyrt in smt. mohinder kaurs case and if so
what fate it met we persuaded ourselves number to cancel the
certificate. mr. k.c. dua learned companynsel who appeared for the
appellants in both the appeals was rather on uncertain
ground when he first stated that he does number wish to
challenge the companystitution validity of section 7 and or the
provisoes to sec. 7 1  e  and then later on stated that he
does challenge the two provisoes to sub-clause  e  of sub-
sec.  1  of sec. 7 on the ground that these two pro-
visoes are violative of section 299 2  of the government of
india act 1935.
sec. 7 1  e  and the two provisoes read as under
7.  1  where any land has been acquired under this
act there shall be paid companypensation the amount of
which shall be paid companypensation the amount of which
shall be determined in the manner and in accordance
with the principles hereinafter set out that is to
say-
xx xx xx
xx xx xx
 e  the arbitrator in making his award shall have
due regard to the provisions of sub-section  1  of
section 23 of the land acquisition act 1894  i of
1894
provided that the market-value referred to in
clause first of subsection  1  of section 23 of the
said act shall be deemed to be the market-value of such
land on the date of publication of the numberice under
section 3 or on the first day of september 1939 with
an addition of 40 per cent whichever is less
provided further that where such land has been
held by the owner thereof under a purchase made before
the first day of april 1948 but after the first day
of september 1939 by a registered document or a
decree for pre-emption between the aforesaid dates the
compensation shall be the price actually paid by the
purchaser or the amount on payment of which he may have
acquired the land in the decree for pre-emption as the
case may be. the 1948 act was enacted to acquire land for
resettlement of displaced persons. as an aftermath of the
partition of india thousands of persons were uprooted from
their habitats and they had to be resettled. urgent
necessity was to acquire the land and that too at reasonable
price. in order to circumvent the prolix and time-consuming
procedure under the land acquisition act 1894 a special
act was enacted. sec. 7 broadly provides for payment of
compensation for the land to be acquired for carrying out
the purposes of the act and the manner and method of
computation of companypensation. sub-clause  e  provides for
determining the companypen-
sation having the due regard to the provisions of sub-
section  1  of the land acquisition act 1894 that is the
market price of the land on the date of acquisition. the two
provisoes carve out an exception. the first part of the
first proviso is in companysonance with sections 4 and 6 of the
land acquisition act namely that the market value shall be
determined as on the date of the publication of the numberice
under section 3. numberice under section 3 served the purpose
of a numberification under sec. 4 of the land acquisition act. it is the second part of the first proviso that really
affects the companypensation when it says that either the
market value referred to in the first clause of sub-section
 1  of sec. 23 of the said act shall be deemed to be the
market value of such land on the date of publication of the
numberice under section 3 or market value of the land on the
first day of september 1939 with an addition of 40 per
cent whichever is less. the second proviso caters to the
situation where land acquired has been held by the owner
thereof under a purchase made before the ist day of april
1948 but after the ist day of april 1948 but after the ist
day of september 1939 which is number the question herein. mr. dua urged that reducing the companypensation to the
market value plus 40 per cent as on ist day of september
1939 is thoroughly irrelevant to the payment of companypensation
and arbitrarily selects the date much earlier to the date of
acquisition and ignumberes the escalation of price of the land. it was urged that the situation is number improved by adding 40
per cent to the market value as determined on ist day of
september 1939. the choice of the date september ist 1939
does number appear to be arbitrary but has a real nexus to the
object sought to be achieved by the 1948 act. we are of the
opinion that the choice of the date as ist september 1939
is very relevant cannumber be struck down as arbitrary because
one can number overlook the historical fact that the second
world war was declared on september 2 1939 and india was
dragged into it by a foreign power on september 3 1939 and
the war situation companytributed to the escalation in price of
the land. it is however number necessary to examine in depth
this aspect. the 1948 act is admittedly inserted in the ninth
schedule by the companystitution  first amendment  act 1951
which also simultaneously added art. 31-b. the act finds its
place at plecitum 16 in the ninth schedule. once an act is
placed in the ninth schedule article 31 b provides that
either the act or any provision thereof shall number be deemed
to be void or ever to have become void on the ground of such
act or any provision thereof is inconsistent with
or takes away or abridges any of the rights companyferred by any
provision of part iii of the companystitution. once the act is
brought under the umbrella of protection of art. 31-b by
inserting it in the ninth schedule the act is number open to
the challenge that it as a whole or any provision thereof
violates or companytravenes any of the fundamental rights
contained in part iii of the companystitution. the allegation
here is that the two provisoes violate the guarantee of fair
compensation and therefore it companystitutes deprivation of
property without just companypensation a relic of art. 31 2
lifted from sec. 299 2  of the government of india act
1935.
the 1948 act is a pre-constitution statute. it was
therefore urged that it does number qualify for the protection
of art. 31-b in as much as when enacted it was violative of
sec. 299 2  of the government of india act 1935 and as it
was void ab initio it was number an existing law within the
meaning of expression in article 366 10  and therefore is
number qualified for umbrella of protection enacted in art. 31-
b.
sec. 299 of the government of india act 1935 is almost
in pari materia with repealed art. 31 2 . a companystitution
bench of this companyrt in dhirubha devi singh gohil v. the
state of bombay 1  while upholding the companystitutional
validity of the bombay talukdari tenure abolition act 1949
on the ground that it was number companyered by the umbrella of
protection of art. 31-b and the ninth schedule held that
sec. 299 2  of the government of india act was in substance
a fundamental right which was lifted bodily as it was from
the government of india act 1935 and put into the part iii
of the companystitution. accordingly repelling the companytention
that the bombay act violated sec. 299 2  and was number
qualified for the protection of art. 31-b it was held that
the marginal difference in the language of sec. 299 and art. 31-b does number make any difference because what art. 31-b
protects is number a mere companytravention of the provisions of
part iii of the companystitution but an attack on the grounds
that the impugned act is inconsistent with or takes away
or abridges any of the rights companyferred by any provision of
part iii. it was accordingly held that even though the
bombay talukdari tenure abolition act 1949 was a pre-
constitution statute it would numberetheless be companyered by the
umbrella of protection of art. 31-b. in this companynection it
was observed as under
it will be illogical to companystrue article 31-b as
affording protection only so far as these rights are
taken away by an act in violation of the provisions of
the new companystitution but number when they are taken away
by an act in violation of section 299 of the government
of india act which has been repealed. the intention of
the companystitution to protect each and every one of the
acts specified in the ninth schedule from any challenge
on the ground of violation of any of the fundamental
rights secured under part iii of the companystitution
irrespective of whether they are pre-existing or new
rights is placed beyond any doubt or question by the
very emphatic language of article 31-b which declares
that numbere of the provisions of the specified acts shall
be deemed to be void or ever to have become void on the
ground of the alleged violation of the rights indicated
and numberwithstanding any judgment decree or order of
any companyrt or tribunal. that intention is also
emphasised by the positive declaration that each of
the said acts or regulations shall subject to the
power of any companypetent legislature to repeal or amend
it companytinue in force. this very question again surfaced in the state of uttar
pradesh and others v. h. h. maharaja brijendra singh 1  in
which companystitutional validity of u. p. land acquisition
 rehabilitation of refugees  act 1948 was questioned. the
title of the act impugned in that case clearly shows that it
was in pari materia with the act 1948 both being enacted
with a view to acquire power to acquire land for
rehabilitation of refugees and that too in the same year. it
may as well be mentioned that u. p. act xxvi of 1948 is also
inserted in the ninth schedule. the entry just precedes the
1948 act. the high companyrt while upholding the validity of
sec. 11 which is in pari materia with sec. 7 of 1948 act
struck down the two provisoes to sec. 11 similarly worded as
the two provisoes to sec. 7  1   e . both the provisoes are
in pari materia with the impugned provisoes. this companyrt
reversing the decision of the high companyrt and following the
decision in dhirubha devisingh gohils case while upholding
the companystitutional validity of the act held that the
protection under art. 31b against the violation of the
fundamental rights mentioned therein must extend to the
rights under sec. 299 of the government of india act also. the reasons which weighed with the companystitution bench of
this companyrt while upholding the validity of the u. p. act. will
mutatis mutandis apply here and we must uphold the validity
of the two provisos on parity of reasoning. it is thus satisfactorily established that in view of
the insertion of the 1948 act in ninth schedule it enjoys
the umbrella of protection of art. 31-b and therefore it is
immune from the challenge as violating any of the provisions
in part iii of the companystitution. in fact this should end the
controversy. mr. dua however urged that in view of the decision of
this companyrt in n.b. jeejeebhoy v. assistant companylector thana
prant thana 1  wherein this companyrt struck down the land
acquisition  bombay amendment  act 1948 as companystitutionally
invalid would necessitate re-examination of the decisions in
dhirubha devisingh gohils case and maharaja brijendra
singhs case. it was submitted that the decision in
jeejeebhoys case companyes later in point of time both to the
decision in dhirubha gohils and maharaja brijendra singhs
case and therefore the later decision should prevail with
this companyrt. in jeejeebhoys case this companyrt repelled the
contention that the amendment act is saved by art. 31-a of
the companystitution. the argument of the learned attorney
general that sec. 299 of the government of india act 1935
declared a fundamental right of a citizen that it is bodily
lifted and introduced by the companystitution in art. 31 2
thereof and that if art. 31-a saved an attack against the
amending act on the ground that it infringed art. 31 2
thereof it would equally save the attack based on the
infringement of sec. 299 2  of the government of india act
1935 was disposed of by merely observing that the argument
is far fetched. it may however be mentioned that in this
later decision the decisions of the companystitution bench in
dhirubha devisingh gohils case and the maharaja brijendra
singhs case were merely referred to but number overruled. they
were distinguished on the ground that the statutes impugned
in those cases enjoyed the protection of art. 31-b. that is
a fact and would make all the difference. the impugned act
in jeejeebhoys case did number enjoy the protection of the
ninth schedule and art. 31-b and therefore the decision in
jeejebhoys case is hardly of any assistance. it was lastly urged that the decision of the larger
bench in rustom cavasjee companyper v. union of india 2  would
clearly show that
the decision of this companyrt in state of gujarat v. shantilal
mangaldas and others is numbermore good law and therefore it is
open to the companyrt to examine whether companypensation offered by
the relevant provisions of the statue is illusory or
prescribe principles well-recognised for valuation of land. in our opinion this aspect is hardly relevant because once
the impugned statute or the impugned provisions of the
statute enjoy the protection of art. 31-b it is number open to
the companyrt to examine whether the principles for valuation
therein prescribed are relevant to the land valuation
because that question arises where a companyplaint as to the
contravention of fundamental rights enacted in repealed
art.31 can be entertained and examined. that companyplaint has
to be rejected at the threshold as soon as it is pointed out
that the impugned statute or the impugned provisions of
statute enjoy the protection of art. 31-b. it may be
mentioned that in smt. mohinder kaurs case a full bench of
delhi high companyrt examined and upheld the companystitutional
validity of the two provisoes to sec. 7 1  e  of the 1948
act. we agree with the view taken by the high companyrt and
upheld the same. companystitutional validity of the provisoes to sec. 7 1  e  of the 1948 act was the only point canvassed in
these two appeals and as there is numbermerit in it both the
appeals fail and are dismissed without any order as to
costs. in civil appeal number 922 of 1971 the appellant died
pending the appeal and substitution is sought by one kumari
abha gupta basing her claim on the will dated july 27 1980
of the deceased. the will has neither been probated number
anywhere its validity is determined.