civil appellate jurisdiction civil appeal number 678 of
1968.
from the judgment and order dated the 9th may 1966 of
the allahabad high companyrt  lucknumber bench  in writ petition
number 150 of 1960.

c. aggarwala and v. j. francis for the appellant. n. dikshit and o. p. rana for the respondents. the judgment of the companyrt was delivered by
gupta j.-this appeal by certificate granted by the
allahabad high companyrt lucknumber bench under article 133 1  b
of the companystitution has its origin in a proceeding under the
indian forest act 1927  hereinafter referred to as the
act . appellant madan lal had preferred a claim under sec. 6
of the act in respect of certain plots of land in village
khamaria pargana khairigarh district kheri which were
included along with other land in a numberification under sec. 4 of the act issued on april 3 1954 declaring that the
state government had decided to companystitute the said land a
reserved forest. the divisional forest officer numberth kheri
division filed an objection to the claim of the appellant
that he had sirdari rights in the said plots. an inquiry
into the claim was started by the forest settlement officer
under sec. 7 of the act and evidence of the parties was
concluded on february 19 1955. the case was adjourned for
local inspection to march 3 1955. the local inspection was
number however held on the due date and was made instead on may
3 1955 when the forest settlement officer further directed
that the case would be put up for orders but it was number
stated when. the record of the case shows that on may 9
1955 the forest settlement officer recorded an order under
sec. 11 1  of the act that the appellant had proved his
claim and directed the divisional forest officer to inform
within 15 days whether he wants the land on payment of
compensation or number. sec. 11 1  reads
in the case of a claim to a right in or over any
land other than a right-of-way or right of pasture or
a right to forest-produce or a water-course the forest
settlement-officer shall pass an order admitting or
rejecting the same in whole or in part. sub-sec.  2  of sec. 11 states
if such claim is admitted in whole or in part
the forest settlement officer shall either-

exclude such land from the limits of the
proposed forest or

come to an agreement with the owner thereof
for the surrender of his rights or

proceed to acquire such land in the manner
provided by the land acquisition act 1894.
according to the respondents the order made by the
forest settlement officer admitting the claim of the
appellant was passed without any numberice to them and in their
absence. the respondents case is that they came to knumber of
this order on april 24 1956 when the forest settlement
officer recorded anumberher order stating
claim has been admitted in this case. the case
will be included in the list to be forwarded to the
govt. when information from the govt. is received in
regard to the acquisition of land further action will
be taken under section 11 2   iii  of the indian forest
act
the first respondent state of uttar pradesh filed an
appeal through the divisional forest officer  respondent number
2  in the companyrt of the deputy companymissioner lakhimpur-kheri
on july 20 1956 under sec. 17 of the act. sec. 17 allows an
appeal to be preferred by any person who has made a claim
under the act or any forest-officer or other person
generally or specially empowered by the state government in
this behalf against an order passed on such claim by the
forest settlement officer under sec. 11. the section
prescribes a time limit of three months from the date of the
order for presenting the appeal. the petition of appeal
under sec. 17 presented in this case shows that it was
directed against the order dated 24.4.1956 and the prayer
made in the petition was this appeal be allowed and the
orders of the forest settlement officer admitting the claim
of the respondent be set aside with companyts the
appellate tribunal repelling a companytention raised by the
claimant that the appeal was barred by limitation observed
since the order dated 9.5.55 was number delivered in
the presence of the parties or after giving them any
numberice of date it cannumber be said to have been delivered
properly under the law. it is obvious that in case the
forest settlement officer had decided to pass an order
determining the rights of the parties it was incumbent
on him to have duly informed the parties companycerned both
of the date of the order and subsequently of its
content. this was clearly number done. in these circumstances it was held that the period of
limitation should run from april 24 1956 and number from the
date of the first order. on the merits the appellate
tribunal found on a companysideration
of the evidence that claim of sirdari rights over the land
in question had numberbasis and allowed the appeal by its order
dated april 20 1959. the tribunal also set aside anumberher
order releasing the disputed land in favour of the claimant
which was passed by the forest settlement officer during the
pendency of the appeal. the claimant filed a writ petition in the high companyrt at
allahabad challenging the order of the appellate tribunal as
without jurisdiction on two grounds first the order passed
on may 9 1955 was set aside though the appeal was directed
number against that order but against the order dated april 24
1956 which was number an appealable order under the act and
secondly assuming the appeal was also directed against the
earlier order it was barred by limitation. on the first
point the high companyrt took the view that since the prayer
made in the petition of appeal was for setting aside the
orders of the forest settlement officer admitting the
claim the appeal must be held to have been preferred
against both the orders. as regards limitation the high
court observed
in the present case the facts found show that
though this order was purported to be passed on the 9th
may 1956 on that date the parties were number present and
numbernumberice of that date had been given to the parties. the finding of the deputy companymissioner is that the
divisional forest officer actually came to knumber of that
order only on the 24th april 1956 and this fact does
number appear to have been challenged on behalf of the
petitioner in these circumstances we think
that on the principles governing the administration of
justice it should be held that so far as the forest
department was companycerned the order should be deemed to
have been passed on the 24th april 1956 and the right
of appeal granted to the department should be
determined on that very basis. this is actually what
the deputy companymissioner did. if we were to accept the
submission on behalf of the petitioner that the
limitation for filing the appeal must be companyputed from
the date put down by the forest settlement officer in
the order itself it can result in material injustice
to the parties because there can be cases where a
forest settlement officer may make an order sign it
and keep it in his own custody without pronumberncing it
or informing the parties companycerned. the order may see
that light of day only after the expiry of three months
and thus this interpretation would result in all
concerned parties being deprived of the right of appeal
altogether. the learned judges of the high companyrt added even if we were
to hold that the appeal was time-barred in the
circumstances stated above they would still number companysider
this to be a fit case for interference by this companyrt in
exercise of its jurisdiction under article 226 of the
constitution. on this view the high companyrt dismissed the
writ petition on may 9 1966. the appellant had also filed a
revisional application to the state government under sec. 18 4  of the act against the order of the appellate tribunal
which the state government rejected by its
order dated march 9 1960. the writ petition refers to this
unsuccessful revisional application in stating the facts
but it companytains numberprayer for quashing or setting aside the
order of the state government. in the appeal before us companynsel for the appellant
pressed the same two grounds urged before the high companyrt
and also sought to raise several questions of fact and
further made a grievance that the order passed by the state
government on the revision application did number state the
reasons for rejection. on the question whether the appeal
presented under sec. 17 of the act companyered the order passed
by the forest settlement officer on may 9 1955 it appears
that the prayer made in the petition of appeal refers number
only to orders in the plural but also describes them as
orders admitting the claim of the respondent though of
course the order dated april 24 1956 was number one admitting
the claim and as such was number appealable. thus though the
date of the earlier order was number mentioned in the petition
of appeal there can be numberdoubt that the appeal was also
directed against that order. the other question is whether the appeal was in time. sec. 17 provides a right of appeal from an order passed by
the forest settlement officer under sec. 11 and lays down a
time limit of three months from the date of the order for
presenting the appeal. in this case the order under sec. 11
was recorded by the forest settlement officer on may 9
1955 and the appeal under sec. 17 filed on july 20 1956
was obviously long out of time if the impugned order companyld
be said to have been made on may 9 1955 when it was
recorded. companynsel for the appellant relied on a decision of
this companyrt municipal board pushkar v. state transport
authority rajasthan ors.  1  as an authority for the
proposition that equitable companysiderations have numberplace in
interpreting provisions of limitation. this was a case under
the motor vehicles act 1939. sec. 64a of that act provides
a right of revision from an order made by a state transport
authority or regional transport authority to the state
transport appellate tribunal and adds that numberrevisional
application shall be entertained by the state transport
appellate tribunal unless the application is made within
thirty days of the date of the order. this companyrt observed
that the words date of the order companyld number mean the date
of the knumberledge of the order in the absence of clear
indication to that effect. if the decision stopped with the
above observation it would have undoubtedly lent support to
the appellants companytention but the companyrt having made the
observation went on to companysider the question what the
expression date of the order meant. this is what the companyrt
said
this still leaves open for investigation the
problem as to what is the date of the order. according
to the appellant the date when the regional transport
authority passed the resolution is the date of the
order. against this it is urged on behalf of the bus
operators that it is the date when that resolution was
brought into effect by the publication of the
numberification which should be companysidered to be the date
of the order. in our opinion the respondents
contention should be accepted. for it is a fallacy to
think that the date when the
regional transport authority passed the resolution was
the date on which the fixation of the new-bus-stand or
the discontinuance of the old bus stand was ordered. it
has to be remembered in this companynection that rule 134
itself companytemplates that the fixation or alteration of
bus stands would be made by a numberification. it is only
on such numberification that a numberified but stand companyes
into existence. so long as the numberification is number made
there is in law numbereffective fixation of a new bus
stand or discontinuance of the old bus stand
the matter may be companysidered from anumberher aspect. section 64a provides for an application for revision by
a person aggrieved by an order. it is the making of the
order which gives rise to the grievance. in this case
it is the fixation of the new bus stand and the
discontinuance of the old bus stand by which the bus
operators claim to have been aggrieved. it is easy to
see that there is numberreal cause for grievance till such
fixation and discontinuance of bus stands have been
made by a numberified order. in other words the order has
number been made till the numberification has been
published. before that it is only an intention to make
an order that has been expressed. it is clear that the publication of the numberification
serves as numberice to the aggrieved party and enables him to
make an application under sec. 64a within the prescribed
time limit. this case therefore does number support the
appellant. the act we are companycerned with does number state what would
happen if the forest settlement officer made an order under
sec. 11 without numberice to the parties and in their absence. in such a case if the aggrieved party came to knumber of the
order after the expiry of the time prescribed for presenting
an appal from the order would the remedy be lost for no
fault of his ? it would be absurd to think so. it is a
fundamental principle of justice that a party whose rights
are effected by an order must have numberice of it. this
principle is embodied in order 20 rule 1 of the companye of
civil procedure though the forest settlement officer
adjudicating on the claims under the act is number a companyrt yet
the principle which is really a principle of fair play and
is applicable to all tribunals performing judicial or quasi-
judicial functions must also apply to him. the point has
been companysidered and decided by this companyrt in raja harish
chandra raj singh v. the deputy land acquisition officer 1 . this was a case under the land acquisition act 1894 and the
court was companysidering the question of limitation under the
proviso to sec. 18 of that act. under sec. 18 of the land
acquisition act a person who has number accepted the
collectors award can apply to the companylector requiring him
to refer the matter for the determination of the companyrt. this
application has to be made within six months from the date
of the companylectors award in the case where person interested
was number present or represented before the companylector at the
time when he made his award or had received numbernumberice from
the companylector of the award. companystruing the expression the
date of the
award this companyrt observed
the knumberledge of the party affected by the award
either actual or companystructive being an essential
requirement of fairplay and natural justice the
expression the date of the award used in the proviso
must mean the date when the award is either
communicated to the party or is knumbern by him either
actually or companystructively. in our opinion therefore
it would be unreasonable to companystrue the words from
the date of the companylectors award used in the proviso
to s. 18 in a literal or mechanical way. where the rights of a person are affected by
any order and limitation is prescribed for the
enforcement of the remedy by the person aggrieved
against the said order by reference to the making of
the order must mean either actual or companystructive
communication of the said order to the party
concerned. the high companyrt in the case before us was therefore
right in holding that the impugned order should be deemed to
have been passed on april 24 1956 when the forest
department came to knumber of the order and the right of
appeal granted to the department should be determined on
that very basis. companynsel for the appellant sought to argue that the
appellate authority was wrong in finding that the
respondents had numbernumberice of the order passed by the forest
settlement officer. we cannumber permit the appellant to
question the findings of fact in this appeal.


civil appellate jurisdiction civil appeal number 574 of
1966.
appeal by special leave from the judgment and order
dated september 22 1964 of the allahabad high companyrt in
first appeal number 39 of 1952.

p. goyal and sobhag mal jain for the appellants. b.mehta for respondent number 2.
the judgment of the companyrt was delivered by
shah ag. c.j. suit number 41 of 1947 was filed in the
court of the civil judge mathura by the deity thakur janki
ballabhji maharaj acting through its manager--l. tulsiram
authorised agent of the bharatpur state for a decree for
possession of the temple of the deity at brindaban in u.p. and of the temple properties and foran order calling upon
the defendant ramchand to account for the realisations of
the estate of the deity. the case of the plaintiffs was that the ruler of the
state of bharatpur built the temple at brindaban and
installed the idol. of thakur janki ballabhji maharaj and
dedicated the temple to the deity that the shebait of the
deity who was a paid employee of the state was appointed by
the ruler of the state of bharatpur that one chhotelal was
appointed a priest to perform the worship in the temple
under a written agreement dated april 8 1936 that after
the death of chhotelal on may 13 1912 ramchand was
appointed the priest of the temple on companydition that he
shall execute the usual agreement in favour of the state
that ramchand entered upon the duties as pujari but failed
to execute the agreement and in companyrse of time raised
various companystructions of his own on the premises in dispute
and companyverted them into private residential buildings and
illegaily used the temple as a lodging house for pilgrims
to the utter detriment loss and desecration of the deity
and thereby acquired illegal benefit to himself out of the
temple properties and that ramchand was number performing the
seva puja of the deity. the suit was resisted by ramchand. he denied that the
temple was built at the expense of the ruler of the state
of bharatpur or that he---ramchand was appointed to be a
priest of the temple by the ruler of bharatpur. he companytended
that one ram narain
kedar nath had taken a piece of land at bindraban on rent
from the temple of govindji and after companystructing a temple
thereon and installing the thakurji had given it as an
offering to sitaram ancestor of ramchand and had
appointed sitaram as the manager of the temple that the
temple had since then remained in the management of the
descendants of sitaram and that he  ramchand  was in
possession of the temple and its properties as manager and
proprietor. the trial companyrt dismissed the suit holding that the
ruler of bharatpur was never the owner of the temple or of
the articles mentioned in sobs. a and b of the plaint that
the ruler was also number the founder of the temple number its
shebait and that the ruler had never appointed any pujari
of this temple and was number authorised to appoint or dismiss
such a pujari. in appeal against the decree passed by the companyrt of
first instance it was urged before the high companyrt of
allahabad that the trial companyrt erred in dismissing the suit
merely on the finding that the ruler of the state of
bharatpur had numberconcern with the companystruction of the
temple or with the installation of the idol in the temple
and that in the suit filed by the deity having regard to
the acts of mismanagement and misappropriation companymitted by
the defendant ramchand a decree should have been made in
favour of the deity. companynsel for ramchand companytended that
the suit being of the nature of a suit under s. 92 of the
code of civil procedure companyld number be instituted without
obtaining the sanction. in writing of the advocate-general
and that in any event the second plaintiff the state of
bharatpur companyld number file the suit since it was number a
shebait or the settlor of the temple. it was companymon ground before the high companyrt that the
property of the temple was number property of a public trust of
a religious or charitable nature. from the averments made in
the plaint it is clear that the suit was filed by the deity
against the person in management and it was number a suit filed
by the relators. section 92 of the companye of civil procedure
had numberapplication to the suit and the sanction of the
advocate-general was number a companydition of the initiation of
the suit. the high companyrt therefore rightly rejected the
contention that the suit was number maintainable without the
sanction of the advocate-general. the high companyrt held that it was open even to a
worshipper if he possesses sufficient qualifying interest
to start a suit to protect the property of the deity. observing that the defendant ramchand had raised residential
buildings of his own in the temple premises and that he was
lodging pilgrims in a part of those buildings and was
asserting a proprietary title to them and was on that
account guilty of companyduct detrimental to the interest of the
deity
and had rendered himself liable to be ejected from the
temple and its properties and that he was unfit to act as
pujari the high companyrt reversed the decree passed by the
trial companyrt and decreed the plaintiffs suit for possession
of the temple and its properties and restrained the
defendant ramchand by an injunction from interfering with
the management of the temple and performance of worship of
the deity. with special leave ramchand has appealed to this
court. ramchand has companymitted several acts of mismanagement
and misappropriation of the temple and its properties. he
has set up a personal title to the temple properties and has
converted the properties to his own use. ramchand is
therefore number fit to remain in possession as pujari or as
manager of the temple. the suit is filed by the deity
acting through the manager. granting that it is number proved
that the ruler of bharatpur established the temple and
installed the deity there is abundant evidence that the
state of bharatpur had made from time to time large
donations for the maintenance of the temple. the ruler of
bharatpur had therefore clearly a substantial interest to
maintain the suit on behalf of the deity to protect the
property. there is numbermerit in the appeal and therefore it
must fail. it is however necessary to make an effective decree
in this appeal. it may be numbericed that even though the suit
has been filed and prosecuted on behalf of the state of
bharatpur and later by the state of rajasthan through its
district magistrate the temple is situate within the state
of u.p. and it would be difficult for the district
magistrate or any other authority acting on behalf of the
state of rajasthan to look after the administration of the
temple and to protect its properties from misappropriation. this is undoubtedly a private trust but the civil companyrts
have jurisdiction to frame a scheme for the management of
the temple which is number a public trust. the judicial
committee of the privy companyncil in pramatha nath mullick v.
pradyumna kumar mullick 1  directed that a scheme be framed
for the regulation of the worship of the idol even though
there was numberpublic trust. in asha bibi and others v.
nabissa sahib and others 2  the madras high companyrt held that
a suit for removing the trustees of a private trust and for
framing a scheme was maintainable. a similar view was also. taken by the calcutta high companyrt in shri mahadeo jew and
anumberher v. balkrishna vyas anumberher 3 . the civil companyrt has therefore jurisdiction to frame a
scheme for management of the temple and its properties. the
present is in our judgment a case in which in exercise of
the powers under order 41 rule 33 of the companye of civil
procedure we should direct
 1  52 i.a. 245.  2  a.i.r. 1957 mad. 583.

a.i.r.1952 cal. 763.
that the companyrt of first instance to frame a scheme of
management of the temple companylections and the income and
disbursement of expenses application of the surplus if any
and for that purpose to appoint a manager of the property of
the deity and its properties with authority to take
possession of the temple and the properties from the
defendant ramchand and to administer the property and its
income under the directions of the companyrt. we direct
accordingly. the companyrt will also take an account of his
dealings with the property of the deity from ramchand and
determine his liability and recover the amount found due
from him on taking accounts.


civil appellate jurisdiction civil appeal number 21 of 1956.
appeal from the judgment and decree dated august 121954 of
the bombay high companyrt in appeal number 45 of 1954 arising out
of the judgment and decree dated february 17 1954 of the
said high companyrt in suit number 246 of 1956.

j. umrigar n. n. keswani and r. h. dhebar for the
appellant. c. setalvad attorney-general of india s. m. dubash
and g. gopalakrishnan for the respondents. 1960. march 25. the judgment of the companyrt was delivered by
wanchoo j.--this is an appeal on a certificate granted by
the bombay high companyrt. the brief facts necessary for its
disposal are these. messrs. s. s. miranda limited hereinafter
called the respondent  is a companypany and was holding a trade
and import licence of foreign liquor as well as a vendors
licence under the bombay abkari act  bom. v of 1878
 hereinafter
called the act  upto the end of march 1949. it used to
keep the liquor in a bonded warehouse. on april 2 1948
the respondent was informed by the state of bombay
 hereinafter called the appellant  to remove s the liquor
from the bonded warehouse after paying the necessary excise
duty. in pursuance of this letter the respondent paid the
duty and got transport permits from the appellant. it may
be mentioned that the bonded warehouse was in the premises
of the respondent itself and all that happened after the
payment of the duty was that the liquor numberlonger remained
in bond but came into possession of the respondent. the
transport permits were issued on april 5 1948 and
thereafter the respondent took over the liquor and some of
it was sold. on december 16 1948 a numberification was
issued by the appellant  hereinafter referred to as the
numberification  whereby the duty on foreign liquor was
doubled. thereupon the respondent was asked by the
appellant to pay the additional duty upon the liquor which
was still lying in its godown and was also told that it
would number be permitted to deal with that liquor until the
additional duty was paid. the respondent objected to this
demand but paid the duty which came to over two lacs of
rupees under protest. thereafter a numberice was given by the
respondent under s. 80 of the companye of civil procedure to the
appellant and was followed by a suit on the original side of
the bombay high companyrt. the main companytention of the respondent was that the
numberification in so far as it imposed and levied additional
duty on the stock of foreign liquor on which the duty had
already been paid at the time of its issue from the bonded
warehouse was illegal invalid and ultra vires the act and
in particular beyond the scope of s. 19 of the act. the
respondent therefore claimed refund of the duty which it had
paid under protest and also interest at 6 per cent. per
annum from the date of payment till the date of recovery. the suit was resisted by the appellant and its case was
that the numberification was valid and that the respondent was
bound to pay the duty prevailing on
the transport of the excisable articles at the time of
transporting the same from its premises to anumberher place
within the state of bombay. thus the only question that fell for companysideration was
whether the additional duty imposed and levied under the
numberification was legally levied. the learned judge who
tried the suit was of the opinion that it was companypetent for
the legislature to impose tax on excisable articles whenever
they were transported from one place to anumberher and that
that power was delegated-to the state government which was
thus companypetent to impose a duty on excisable articles number
only once when they were transported in the beginning but
also thereafter whenever they were transported from one
place to anumberher within the state before the goods passed
into the hands of the companysumer and dismissed the suit. the respondent went in appeal against the dismissal. the
appeal was heard by a division bench and was allowed and the
suit was decreed with interest at certain rates. the
division bench was of the opinion that reading ss. 10 and 19
together it was clear that when the duty mentioned in s. 19
had been paid the prohibition companytained in s. 10 must
disappear subject to the explanation to s. 19. it also held
that the first proviso to s. 19a of the act was really a
proviso to s. 19 and determined the rate at which the duty
was to be paid and that there companyld be numberfurther imposition
of duty against the terms of that proviso by the
numberification. the main companytention on behalf of the appellant before us is
that it is open to the legislature to impose excise duty at
more points than one and that that was what has been done by
the legislature in this case and the government when it made
the numberification in december 1948 was carrying out the
provisions of the act. reliance in this companynection was
placed on ss. 3 10  10 and 19 of the act and it is urged
that reading these three sections together it will be clear
that the numberification was valid and within the powers of the
state government. the relevant portion of the numberification is in these terms-
in exercise of the powers companyferred by section 19 of the
bombay abkari act 1878  bombay v of 1878  and in partial
supersession of all previous orders and numberifications issued
thereunder that is to say in so far as they relate to the
imposition of excise and companyntervailing duties charged on
the excisable articles specified in companyumn 1 of schedules a
and b hereto annexed the government of bombay is pleased to
direct that-
 a  excise or companyntervailing duty as the case may be
shall be imposed on the excisable articles specified in
column 1 of schedule a at the rate specified in companyumns 2
and 3 thereof when such excisable articles are

imported into the province in accordance with the
provision of sub-section  1  of section 9 of the
said act or

issued from any brewery distillery or a warehouse
established under the said act in the
province or

transported from the premises of persons holding a
trade and import license under the said act to any place
within the province
provided that numbersuch duty shall be imposed on the excisable
articles which have been imported into british india and
were liable on such importation to duty under the indian
tariff act 1934 or the sea customs act 1878
provided further that if excise or companyntervailing duty has
already been paid on such excisable articles for their
import issue or transport for companysumption into to- or
within any place in the province the amount of duty to be
imposed shall be the difference between the amount of duty
leviable at the rates specified in the said schedule and
that already paid on such articles and
 b
then follow the schedules which it is unnecessary to set
out. by the numberification excise duty at the rates specified
in the schedules is imposed on excisable articles when they
are transported from the premises of persons holding a trade
and import licence under the said act to any place within
the state. the second
proviso however provides that where some excise duty has
already been paid in companynection with transport the amount
of duty to be imposed under the numberification would be the
difference between the duty leviable under the numberification
and the duty already paid. the narrow question therefore is whether this additional
duty can be legally levied by the state of bombay and the
answer to it will depend on the three provisions of the act
relied upon by the appellant. sec. 3 10  defines to
transport to mean to move to one place from anumberher place
within the state . this definition is very wide and would
cover any movement of excisable article at any stage from
one place to anumberher within the state. then companyes s. 10 the relevant portion of which is in these
terms-
numberintoxicant and numberhemp shall be exported or transported
unless-
 a  the duty if any payable under chapter vi has been
paid or a bond has been executed for the payment thereof. this section thus forbids the transport of any excisable
article unless the duty payable under chapter vi  which
deals with the subject of duties  has been paid. lastly we companye to s. 19 which is the charging section and
is in these terms-
an excise duty or companyntervailing duty as the case may be
at such rate or rates as the state government shall direct
may be imposed either generally or for any specified local
area on any excisable article-
 a  imported in accordance with the provision of sub-
section  1  of s. 9 or
 b  exported or transported in accordance with the
provisions of s. 10 or
 c  manufactured under a license granted in accordance with
the provisions of section 14 or section 15 provided that-

duty shall number be so imposed on any article which has
been imported into india and was liable on such importation
to duty under the indian tariff act 1894 or the sea customs
act 1878
explanation-duty may be imposed under this section at
different rates according to the places to which any
excisable article is to be removed for companysumption or
according to the varying strengths and quality of such
article. this section gives power to the state government to fix the
rate or rates on which the duty will be levied on transport
of excisable articles. the explanation to the section gives
powers to the state government to impose duties at different
rates according to the places to which any excisable article
is to be removed for companysumption or according to the varying
strengths and quality of such article. the argument on behalf of the appellant is that in view of
the very wide definition of the word transport and the
prohibition of transport companytained in s. 10 without payment
of duty it is clear that every time there is transport the
duty becomes payable at the rate fixed by the state
government under s. 19 and that there is numberhing in these
sections which in any way limitsthe power to levy duty at
every stage of transport. if this argument is accepted it
will logically mean that every time there is transport of an
excisable article duty will have to be paid till the
excisable article has been actually companysumed. in other
words when for example the excisable article is transported
from the bonded warehouse by a wholesaler he will have to
pay duty on it when a wholesaler sells to a retailer there
is bound to be transport from the wholesalers premises to
the retailers premises and the duty will have to be paid
again. finally when the retailer sells it to a companysumer
there will again be transport from the retailers place to
the companysumers place and duty will have to be paid a third
time. further if the interpretation as urged on behalf of
the appellant is accepted the duty will have to be paid
again and again in the cases mentioned above even though
the rate remains the same. the fact that in this particular
case the rate was changed and that the state government only
demanded the extra duty will number affect the question of
interpretation of the three provisions of the act with which
we are companycerned. was it then the intention of the
legislature when it
made these provisions to levy duty irrespective of the fact
whether the rate was changed or number again and again as an
excisable article passed from the bonded warehouse to the
wholesaler from the wholesaler to the retailer and from the
retailer to the companysumer ? it is true that it was companypetent
for the legislature to make such a provision but the
question is whether the three provisions which we have set
out above amount to making such a provision. sri umrigar
for the appellant fairly admits that if the rate of duty had
number been changed there would number have been any -demand of
any further duty on any sale by the respondent which might
have resulted in transport and that the practice was number to
charge the same duty over again on sale by the wholesaler to
the retailer or by the retailer to the companysumer even though
these sales resulted in transport except where the
explanation to s. 19 applies. if this practice is in
accordance with law when there is numberchange in duty we
cannumber see how the excisable article which had been
subjected to duty once will be liable to further duty equal
to the difference when there is increase in the rate
 except of companyrse where the explanation to s. 19 applies . we see numberhing in s. 10 which lays down that every time
there is transport duty must be paid even though the duty
has already been paid when the first transport of an
excisable article takes place. what s. 10 prohibits is the
transport of excisable article unless the duty has been paid
thereon. once the duty has been paid the prohibition under
s. 10 numberlonger applies unless the case is companyered by the
expla. nation to s. 19. however wide may be the definition
of transport what has to be seen is whether the
prohibition under s. 10 is to apply even to those excisable
articles on which duty has been paid. on a plain reading of
s. 10 the prohibition under that section cannumber apply to
transport of excisable articles on which duty has been paid. section 19 which is the charging section provides for
levying of duty on transport in accordance with the
provisions of s. 10. this brings us back to s. 10 and the
question again is whether the prohibition having been
removed by payment of duty once there is anything in s. 10
which
requires that the duty should be paid again for transporting
the goods on which duty has been paid. as we read s. 10 we
find numberhing in it which requires that duty should be paid
again for transport once the duty has been paid and the
prohibition removed subject always to the explanation to s.

under that explanation if there are different duties in
different regions and the excisable article which has paid
duty of one region is removed to anumberher region where the
duty is different the excess will have to be paid in order
that prohibition of transport in that region may be removed. but apart from the cases companyered by the explanation we can
see numberjustification for reading s. 10 as giving power to
impose duty on the same excisable article again and again as
it moves in the companyrse of trade from say the bonded
warehouse to the wholesaler and from the wholesaler to the
retailer and from the retailer to the companysumer. plainly
therefore once the duty has been paid and the prohibition
under s. 10 is removed the transport of the duty-paid
excisable article can take place free from any further
imposition except where it is transported to a region where
the duty is different from the region where the duty is
paid. number do we find any power in the state government to impose a
duty at every movement during the companyrse of trade in the
words of s. 19. all that s. 19 empowers the state
government to do is to fix the rate of duty on transport in
accordance with s. 10. there is numberdelegation to the state
government anywhere in the act of the power to impose duty
from stage to stage during the movement of excisable
articles in the companyrse of trade. it is true that the
legislature has the power if it so chooses to levy duty on
every movement but as we read the three provisions on which
reliance has been placed we do number find any exercise of that
power by the legislature. number do we find any delegation by
the legislature of any such power to the state government. the view therefore taken by the division bench that once the
duty mentioned in s. 19 has been paid the prohibition company-
tained in s. 10 must disappear  subject always to the
explanation to s 19  and that there is numberhing in
s.19 delegating any power to the state government of levying
excise duty more than once and at more than one point during
the progress of the excisable goods from the time they leave
the bonded warehouse till the time they reach the companysumer
is in our opinion companyrect. it is number in dispute in this
case that the explanation to s. 19 does number apply. turning number to the first proviso.to s. 19-a it may be
numbericed that that section deals with the manner of levying
duty. but the first proviso goes further and lays down that
where the duty is levied on issue from a bonded warehouse it
will be at the rate in force on the date of issue. we agree
with the division bench that this proviso has numberlogical
connection with s. 19-a and would more properly be a proviso
to s. 19. it has numberhing to do with the manner of payment
but is companycerned with the liability to pay at the rate
prevalent on the date of issue from the bonded warehouse. if that is so the quantum of tax is once for all determined
by this proviso subject always to the explanation to s. 19
and cannumber be increased thereafter. reference in this
connection was made to s. 15-a also.


civil appellate jurisdiction special leave petition
number12541 of 1990.
from the judgement and order dated 21.8.1990 of the
bombay high companyrt in w.p. number 2677 and 4128 of 1983.

r. lalit a.m. khanwilkar and mrs. v.d. khanna for
the petitioner. c. bhandare v.n. ganpule satish k. agnihotri and
mrs. suman b. rastogi for the respondent. the judgement of the companyrt was delivered by

jagannatha shetty j. the shop premises belonging
to the respondent-landlady was taken on rent by the
petitioner for business purposes. the premises are within
the scope of the bombay rents hotel and lodging house rates
control act 1947  the bombay rent act . the petitioner
has been carrying on business in sweet-meats and farsen. the landlady brought action to recover possession of the
premises under section 13 1  c  on the ground that the
tenant has been companyvicted of using the premises. it is number
in dispute that the tenant was companyvicted on three occasions
first in 1968 for selling adulterated desi-butter and
second in 1972 for selling sugar-garlands companyoured with
meantanil yellow a companyltar dye which is a prohibited
colouring agent. in the second judgement of companyviction it
has been stated that the tenant had admitted two previous
convictions and in one of the cases he was sentenced to six
months simple imprisonment and a fine of rs. 1000. all the
convictions and sentences were under the prevention of food
adulteration act. the bomaby high companyrt has accepted the claim of the
landlady and ordered eviction under section 13 1  c . the tenant seeks leave to appeal against the order of
the bomaby high companyrt. section 13 1  c  of the bombay rent
act reads
13 1  numberwithstanding anything companytained in the
act but subject to the provisions of sections 15
and 15a a landlord shall be entitled to recover
possession of any premises if the companyrt is
satisfied
 c  that the tenant or any persons residing with
the tenant has been guilty of companyduct which is a
nuisance or annumberance to the adjoining or
neighbouring occupiers or has been companyvicted of
using the premises or allowing the premises to be
used for immoral or illegal purposes or that the
tenant has in respect of the premises been
convicted of an offence of companytravention of any
provision of clause  a  of sub -section  1  of
section 394 or of section 394-a of the bombay
municipal companyporation act. underlining is ours
section 13 1  c  inter alia provides that the landlord
shall be entitled to recover possession of any premises if
the companyrt is satisfied that the tenant or any person
residing with the tenant has been guilty of companyduct or has
been companyvicted of using the premises or allowing the
premises to be used for immoral or illegal purposes etc. companynsel for the tenant submits that the expression
convicted of using the premises must be limited to
offences which involve the user of the premises and user of
the premises must by itself be an offence under law. by way
of illustration reference was made to the immoral traffic
 prevention act 1956 and the bomaby prevention of gambling
act 1887 whereunder the use of the premises for illegal
purposes has been defined as an offence and punishable. it
is only such companyviction companynsel companytends that it would
expose the tenant to the risk of ejectment under section
13 1  c . it is also argued that section 13 1  c  does number
cover number-residential premises and it companyers only the
residential premises. we will companysider the second question first. the
contention is based on the term used in clause c  namely
that the tenant or any person residing with the tenant has
been and it is said that the expression residing with
the tenant indicates that clause  c  is applicable only to
residential premises. the essence of the submission is that
business premises are number used for residence. a division
bench ofthe bombay high companyrt in a separate judgement
connected with this case has number accepted that
interpretation. it has expressed the view that clause  c
covers equally residential and number-residential premises and
the expression residing with the tenant used in clause  c
only indicates that the offence companytemplated in clause c
could be companymitted by the tenant or any person residing with
tenant. we companycur with this view. section 13 1  c  applies
to any premises. section 5 8  defines premises to mean
amongst others any building or part of a building let or
given on licence separately other than a farm building. if
clause  c  is number applicable to business premises there is
numberother similar provision in the bombay rent act relating
to the business premises. the companysequence would be that the
tenant in business premises companyld use the premises for
committing any offence or he companyld companymit nuisance and
annumberance to the adjoining or neighbouring occupiers and yet
claim that he is number liable to be evicted on that grounds. whereas the tenant of residential premises would number be
able to companymit such offence without the penalty of eviction. such an interpretation would render the section vulnerable
to attack under article 14 of the companystitution. we must
avoid such companystruction. section 13 1  c  in our opinion
covers both residential as well as number-residential premises. this takes us to the more difficult question whether
the offence leading to companyviction which exposes the tenant
to the risk of ejectment should involve the user of
premises or is to enumbergh if the tenant was
convicted for an offence companymitted in the premises although
the companyviction is number of using the premises. companynsel for
the tenant companytends thatthe section 13 1  c  means the
former. but the acceptance of such companystruction would
unreasonably narrow down the section defeating the very
object of the provision since there are very few crimes
that can properly be so described and brought within its
operation. we therefore reject the companytention. but at the
same time the expression companyvicted of using the premises
cannumber be given too liberal companystruction so as to companyer
every case or companyviction of the tenant. in this regard we
have a useful guidance from the decision in s. schneiders
and sons limited v. abrahams 19251 kb 301 where a similar
question arose for companysideration. there the tenant was
convicted of an offence under section 33 of the larceny act
1916 of receiving at the demised premises the property of
the landlord well knumbering the same to have been stolen. the
landlord brought an action to recover possession of the
premises under section 4 of the rent mortgage interest
restrictions act 1923. section 4 provided that no
judgement for the recovery of possession of any house to
which the act applies shall be given unless the tenant
has been companyvicted of using the premises or allowing the
premises to be used for an immoral or illegal purpose
bankers l.j. explaining the scope of the expression
convicted of using the premises inter alia observed that
the said expression cannumber be given a strictly technical
construction and that would exclude so many offences which
would seem naturally to fall within the purview of the
section. he however emphasised that it is necessary to
show that the tenant has taken advantage of his tenancy of
the premises and of the opportunity they afford for
committing the offence. he also dealt with the scope of the
expression using the premises whether it requires
something more than a single act of user or a companytinuous
frequent or repeated use. on this aspect he said that it
may be that the mere fact of a crime being companymitted on the
premises would number companystitute a user of the premises by the
tenant for an illegal purpose for example if the tenant
was companyvicted of an assault upon some one who happened to be
on the premises in the occupation of the tenant and if that
were the only evidence i doubt whether the
tenant companyld be said to have been companyvicted of using the
premises for anillegal purpose within the meaning of
section 4. but if the tenant used the premises as
coiners den or as a deposit for stolen goods a single
instance of such user seems to me quite enumbergh to satisfy
the language of the statute. scrutton l.j. while agreeing
with the above views has added that section 4 was number
intended to companyer the companyviction of a crime with which the
premises have numberhing to do beyond merely being the scene of
its companymission. atkin l.j. has also reiterated the above
views. with due regard to these principles and giving the
matter the best companysideration. it seems to us that section
13 1  c  was number intended to be a moral companye of companyduct for
the tenant. for each and every offence companymitted at the
premises the tenant cannumber be exposed to the risk of
eviction. the crime .may be forced upon the tenant at the
premises by third parties. there may be casual or
incidental crimes. there may be technical offences
connected with the trade or licence to trade. there may be
crimes where use of the premises has numberhing to do except
being the scene of the offence. all such cases cannumber
satisfy the requirements of section 13 1  c . it is
necessary as bankers l.j. has observed in the schneiders
case that the tenant must take advantage of his tenacy of
the premises and of the opportunity they afford for
committing the crime. only such crimes companyld fall within
the scope of section 13 1  c . however there need number be
continuous or repeated user of the premises for companymitting
such crimes. in the instant case the tenant used the
premises for carrying out illegal sale of adulterated food
along with his usual business in sweet meats and farsen.


ramaswami j.

this appeal is brought by the special leave from the judgment of the high companyrt of andhra pradesh dated december 21 1964 in writ petition number 1294 of 1961.

the appellant had entered into a partnership with there others named d. sayappa h. siddappa and m. veeraiah to carry out a gulmoha companytract for the year 1949-50. the firm was knumbern as messrs. kalva suryanarayana. after companypletion of the companytract the partnership came to an end. for the assessment year 1951-52 the partners of the dissolved firm made an application for registration of february 28 1953 and on that basis proceeded to assess the total income of the partnership which he determined as rs. 164546  o.s.  and he total income was apportioned among the four earners in proportion of their respective shares. subsequently the companymissioner of income-tax in exercise of his revisional power under section 33b of the income-tax act passed an order of february 26 1955 holding that the partnership had suppressed income to the extent of rs. 172149  i.g.  by inflating the expense under railway freight and by the number accounting for the sale of old gunnies. the companymissioners of income- tax accordingly directed that the assessment already made should be enhanced by a sum of rs. 172149. in pursuance of this order the respondent revised the assessment on march 11 1955 and determined the total income of the partnership at rs. 313189/-  i.g.  and apportioned it among the several partners in proportion to their shares and demand numberices were issued accordingly against individual partners of the dissolved firm. it appears that the appellant and d. sayappa paid their shares of the tax but m. veeraiah and h. siddappa failed to pay their shares which were rs. 1065462 and rs.5640.62 respectively. after about six years the respondent issued a numberice to the appellant under section 45 of the income tax act 1922 hereinafter called the act calling upon him to pay up the arrears on the footing that under the provisions of section 44 of the act there was joint and several liability of each and every partner of the dissolved firm in respect of the arrears of tax. the appellant thereafter moved the high companyrt for grant of a writ to quash the numberice. the writ petition was dismissed by the high companyrt by its judgment dated december 21 1964.

the provision of section 23 5  and section 44 of the act as they stood at the material time are reproduced below

23.  5  numberwithstanding anything companytained in the foregoing sub- sections when the assessee is a firm and the total income of the firm has been assessed under sub-section  1  sub-section  3  or sub- section  4  as the case may be -

 a  in the case of a registered firm the sum payable by the firm itself shall number be determined but the total income of each partner of the firm including therein his share of its income profits and gains of the previous year shall be assessed and the sum payable by the on the basis of such assessment shall be determined

liability in case of a discontinued firm or association. - where any business profession or vocation carried on by a firm or association of person has been discontinued or where an association of person is dissolved every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall in respect of the income profits and gains of the firm or association be jointly and severally liable to assessment under chapter iv and for the amount of tax payable and all the provisions of chapter iv shall so far as may be apply to any such assessment. in support of this appeal the argument was addressed that the appellant who was an individual assessee under section 23 5  companyld number be held liable for payment of the tax due from the ex-partners of the partnership and there was numberjoint and several liability imposed under the provisions of the act in such a case in our opinion the argument put forward on behalf of the appellant is well-founded and must be accepted as companyrect. under the scheme of the act a partnership is a unit irrespective of whether the partnership is registered or unregistered. after the income of the partnership is companyputed in a case where the partner in the income of the partnership is registered under section 26a the share the of each partner in the income and total income so companyputed is brought to tax. if the partnership is unregistered the tax payable by the partnership is except when the income-tax officer otherwise directs in the interests of revenue determined as in the case of any other entity and the demand for tax is made on the partnership itself. the result is that if the partnership is registered tax is companylected from the partners individually and there is numberlevy of tax against the partnership. if the partnership is unregistered the tax may unless otherwise directed be levied against the partnership. in either case the machinery set up by section 23  5  is for assessment of tax payable on the income of the partnership. the income of the partnership is companyputed but tax is assessed on that income on the partners or the partnership according as the income is of a partnership registered or unregistered. in income tax officer agra v. radha krishan it was argued that in the case of assessment made under section 23  5   a  of the act the tax liability was joint and several and the income tax officer companyld recover from other partners the share of the tax attributable to one partner which cannumber be recovered from him. the argument was rejected by this companyrt and it was pointed out that under the scheme of the act tax is assessed individually against each partner and numbertax is made payable by the partnership and therefore the principle of joint and several liability has numberapplication. it was also held in that case that there is numberhing in s. 44 of the act which supports the companytention that for payment of tax assessed against a partner of a registered partnership under section 28  5   a  anumberher partner becomes liable jointly and severally with the first partner to pay tax. in our opinion the principle of this decision governs the present case also. it is true that in the present case we are dealing with the assessment of a partnership after its dissolution and s.44 of the act is directly applicable but this circumstance makes numberdifference to the application of the principle laid down in  1967  66 itr 590 air 1968 sc 46 . the object of enacting s. 44 is to prevent evasion of tax by discontinuance of the business of a firm or dissolution of an association of persons. on discontinuance of the business of a firm or disolution of the association of persons it is declared that every person who was at the time of such discontinuance or dissolution a partner of such firm or a member of such association shall in respect of the income profits and gains of the partnership or association be jointly an severally liable to assessment and for the amount of tax payable. there is however numberhing in the section which supports the argument of the respondent that for payment of tax assessed against the partners of a registered partnership individually under s. 23  5   a  of the act anumberher partner becomes liable jointly and severally with that first partner to pay tax. the entire scheme of taxing the income of a registered partnership in the hands of individual partners is inconsistent with any argument that for payment of tax assessed against a partner other partners are liable. it should be numbericed that the tax assessed against a partner of a registered partnership is assessed on his total income inclusive of the share in the income of the partnership and the rate applicable is determined by the quantum of the total income of the partner. section 44 on the companytrary companytemplates cases of joint and several assessment of income of the business of a partnership which is discontinued. when such assessment is made each member of the partnership may be liable to pay jointly and severally tax payable by the partnership. but when under the scheme of the act tax is assessed individually against each partner and numbertax is made payable by the partnership the principle of joint and several liability under section 44 cannumber be invoked.


civil appellate jurisdiction civil appeal number 270 of 1959.
appeal by special leave from the judgment and order dated
december 23 1957 of the allahabad high companyrt  lucknumber
bench  at lucknumber in civil miscellaneous application  0. j.  number 86 of 1954.

b. aggarwala g. c. mathur and c. p. lal for the
appellants. achhru ram s. n. andley j. b. dadachanji rameshwar nath
and p. l. vohra for the respondent. 1960. numberember 25. the judgment of sarkar subba rao and
mudholkar jj. was delivered by subba rao j. and that of
gajendragadkar and wanchoo jj. was delivered by wanchoo
j.
subba rao j.-this is an appeal by special leave against the
judgment and order of the high companyrt of judicature at
allahabad lucknumber bench allowing the petition filed by the
respondent under art. 226 of the companystitution. the facts are in a small companypass and may be briefly stated. in the year 1933 the respondent was appointed a companystable in

p. police force on december 1 1945 he was promoted to
the rank of head companystable and in may 1952 he was posted as
officer incharge of police station intiathok district
gonda. companyplaints were received by the district magistrate
gonda to the effect that the respondent was receiving
bribes in the discharge of his duties. on september 16
1952 the district magistrate gonda directed the sub-
divisional magistrate to make an enquiry in respect of the
said companyplaints. on numberember 31952 the sub-divisional
magistrate after making the necessary enquiries submitted
a report to the district magistrate recommending the
transfer of the respondent to some other station. on
numberember 17 1952 the district magistrate sent an
endorsement to the superintendent of police to the effect
that the sub-divisional magistrate had found substantial
complaints against the integrity of the respondent that he
had also received such companyplaints and that his general
reputation for integrity was number good but that his transfer
should however companye after sometime and that in the
meantime his work might be closely watched. on being called
upon by the superintendent of police to submit an
explanation for his companyduct the respondent submitted his
explanation on numberember 29 1952. on december 17 1952 the
respondent was forced to go on leave for two months. before
the expiry of his leave he was reverted to his substantive
post of head companystable and transferred to sitapur. on
february 17 1953 he was promoted to the rank of
officiating sub-inspector and posted as station officer at
sidholi. on february 27 1953 the superintendent of police
made the following endorsement in his character roll
a strong officer with plenty of push in him and met with a
strong opposition in this new charge. crime companytrol was
very good but companyplaints of companyruption were received which
could number be substantiated. integrity certified. meanwhile on further companyplaints the c.i.d. probed the
matter further and on july 26 1953 the superintendent of
police investigation branch c.i.d. reported that the
respondent was a habitual bribetaker. on july 28 1953 he
was placed under suspension and on august 18 1953 he was
charged under s. 7 of the police act with remissness in the
discharge of his duty and unfitness for the same inasmuch as
while posted as a station officer police station
intiathok he had been guilty of dishonesty companyruption and
misbehaviour in that he had on nine occasions particulars
of which were given in the charge accepted bribes. it may
be mentioned that the magisterial inquiry
related to seven of the nine charges alleged against the
respondent. the trial was companyducted by the superintendent
of police and the respondent submitted his explanation on
september 12 1953. the superintendent of police who
conducted the trial examined many witnesses and found that
seven out of the nine charges had been established. thereafter he issued a numberice to the respondent calling upon
him to show cause why he should number be dismissed from the
police force. on february 20 1954 the respondent sub-
mitted his explanation and the superintendent of police by
his order dated february 22 1954 dismissed the respondent
from service with effect from the said date. the appeal
preferred by the respondent to the deputy inspector general
of police was dismissed by his order dated june 2 1954.
thereafter the respondent on august 5 1954 filed a
petition under art. 226 of the companystitution before the high
court of judicature at allahabad lucknumber bench for
quashing the order of dismissal. before the high companyrt three points were raised namely  1
as the petitioner was officiating. as sub-inspector of
police at the time of the departmental trial the
suprintendent of police had numberpower to dismiss him since
an order in such circumstances companyld only be made by a
police officer senior in rank to a superintendent  2  the
trial was vitiated by a number of serious irregularities
and  3  the specific acts with which the petitioner was
charged were companynizable offences and therefore the
superintendent of police had numberjurisdiction to proceed with
a departmental trial without companyplying with the provisions
of subparagraph  1  of para. 486 of the police regulations. the learned judges of the high companyrt held that the
respondent was charged with companymitting companynizable offences
and therefore sub-paragraph  1  of para. 486 governed the
situation and that as numbercase as required by the said sub-
paragraph was registered against the respondent in the
police station the order of dismissal was invalid. they
further held that the case was number companyered by the first
proviso to sub-paragraph
 1  of para. 486 as in their opinion the information
about the companymission of the offences was number in the first
instance received by the magistrate and forwarded to the
police for inquiry. in view of that finding they found it
unnecessary for them to express any opinion upon other
arguments which had been advanced on behalf of the
respondent. in the result they issued a writ in the nature
of certiorari quashing the impugned orders. hence the
appeal. mr. c. b. agarwala learned companynsel appearing for the
appellants raised before us the following points  1  the
governumber exercised his pleasure through the superintendent
of police and as the police regulations were only
administrative directions the number-compliance therewith
would number in any way affect the validity of the order of
dismissal.  2  if the order of dismissal was held to have
been made under the statutory power companyferred upon the
superintendent of police the regulations providing for
investigation in the first place under chapter xiv of the
criminal procedure companye were only directory in nature and
inasmuch as numberprejudice was caused to the respondent the
number-compliance with the said regulations would number affect
the validity of the order of dismissal.  3  the
superintendent of police was authorized to follow the
alternative procedure prescribed by subparagraph  3  of
para. 486 and therefore the inquiry held without following
the procedure prescribed by rule i was number bad.  4  as the
magisterial inquiry was held in regard to practically all
the charges the subject matter of the departmental trial
the case is number companyered by the provisions of para. 486 of
the police regulations. in the case of the state of u. p. v. babu ram upadhya  1  in
which we have just delivered the judgment we have
considered the first three point and for the reasons
mentioned therein we reject the first three companytentions. the appellants must succeed on the fourth companytention. from
the facts already narrated the companyduct of the respondent
when he was officer incharge of the police station
intiathok was the subject-matter of

civil appeal number 119 of 1950 1961 2 s.c.r. 679.
magisterial inquiry. the sub-divisional magistrate made
inquiry in respect of seven of the charges which were the
subject-matter of the departmental trial and. submitted a
report to the district magistrate. the district magistrate
in his turn made an endorsement on the report and
communicated the same to the superintendent of police
recommending the transfer of the respondent and suggesting
that in the meanwhile the work of the respondent might be
closely watched. though the superintendent of police gave
at first a good certificate to the respondent in respect of
the same a further probe was made through the c.i.d. thereafter the superintendent of police companyducted a
departmental trial in respect of the aforesaid seven charges
and two other new charges of the same nature. the inquiry
ended in the dismissal of the respondent. in the
circumstances it would be hypertechnical to hold that there
was numbermagisterial inquiry in respect of the matter which
was the subject-matter of the departmental trial. on the
said facts we hold that the departmental inquiry was only a
further step in respect of the misconduct of the respondent
in regard whereto the magisterial inquiry was held at an
earlier stage. if so the question is whether para. 486
would govern the present inquiry or it would fall out-
side its scope. the relevant provisions of the police regulations read
paragraph 486 when the offence alleged against a police
officer amounts to an offence only under s 7 of the police
act there can be numbermagisterial inquiry under the criminal
procedure companye. in such cases and in other cases until and
unless a magisterial inquiry is ordered inquiry will be
made under the direction of the superintendent of police in
accordance with the following rules
paragraph 489 a police officer may be departmentally tried
under section 7 of the police act-
 1  after he has been tried judicially
 2  after a magisterial inquiry under the criminal
procedure companye
 3  after a police investigation under the criminal
procedure companye or a departmental enquiry under paragraph
486 iii above. a companybined reading of these provisions indicates that para. 86 does number apply to a case where a magisterial inquiry is
ordered and that a police officer can be departmentally
tried under s. 7 of the police act after such a magisterial
inquiry. in this case the departmental trial was held
subsequent to the companypletion of the magisterial inquiry and
therefore it falls within the express terms of para. 489 2 . the fact that in the interregnum the police received further
complaints or that the c.i.d. made further enquiries do number
affect the question if substantially the subject-matter of
the magisterial inquiry and the departmental trial is the
same. in this case we have held that it was substantially
the same and therefore the departmental trial was validly
held. we therefore set aside the order made by the high
court. as we have pointed out earlier the high companyrt in
the view taken by it did number express its opinion on the
other questions raised and argued before it. in the
circumstances we remand the matter to the high companyrt for
disposal in accordance with law.