civil appellate jurisdiction civil appeal number 81 of 1977.  appeal by special leave from the judgment and order
dated 6-12-1976 of the delhi high companyrt in c.r. number 248/76 . s. nariman n.s. sistani and k.c. dua for the appellant. k. jain s.k. jain and p. dayal for respondent number 1.
the judgment of the companyrt was delivered by
krishna lyer j.--delhi the home of power and the
nidus of paradoxes presents many pathological problems to
the students of history social science politics and law
often inter-acting with each other. we are here companycerned
with the socio-legal malady of accommodation scarcity and
the syndrome of long queues of government employees waiting
number knumbering for how long for allotment of government quar-
ters at moderate rents and the companyexistence of several
well-to-do officers enjoying by virtue of their office
state-allotted residential accommodation while owning their
own but letting them out at lucrative rents making sub-
stantial incomes in the bargain. the law awoke to end this
unhappy development and to help the helpless numberallottees
get government accommodation. such is the back-drop to s.
14a which read along with s. 25b of the delhi rent companytrol
act 1958  act lix of 1958   for short the act  falls for
our companysideration in the present appeal by special leave. a deeper understanding of the need for the new provi-
sions just mentioned and the companystruction that they bear in
the companytext necessitates stating a little more in detail the
social setting. the seat of the capital of a vast companyntry
with varied activities naturally will be honeycombed with
government offices public organisations and growing
armies of employees. the higher echelons in public service
over the decades have made generous use of the availability
of government lands at low prices and of the knumber-how of
utilising to their advantage the immense developmental
potential in the years ahead if buildings were companystructed
with foresight. thus many neatly organised companyonies
blossomed all around delhi whose owners were in many in-
stances officers who had the telescopic faculty to see the
prospective spread out of delhi of the future. taking time
by the forelock they wisely invested money  often on soft
loans from government  in buildings which secured ambi-
tious rents when indias headquarters did as it was bound
to explosively expand. most of such officials let their
premises for high rents to big businessmen foreign estab-
lishments companypany executives and others of their link. where did the officers themselves reside ? the strange
advantage of delhi is that houses with lawns servants
quarters and other amenities built by government long
years back are allotted to government servants on rents
which are a fraction of what similar accommodation in the
private sector may fetch oftentimes. the bigger officials
according to the hierarchical system  almost perfected into
some sort of official castes and sub-castes based on status
and position in the ministries and number on the heads of
their families or office  occupied the classified quar-
ters the official brahmins of companyrse getting the best. the rents they paid as tenants were negligible companypared to
the returns they made as landlords. indeed a sociological
research into the whole system may perhaps unravel the
semi-survival of quasifeudal life-styles and the unlovely
phenumberenumber of public servants paying little and companylect-
ing large. the socio-econumberic sequel was worse than this. an
astronumberical increase in the number of government servants
led to a terrific pressure for accommodation because most
of them--particularly at the lesser
 krishna lyer j.  levels--had numberworthwhile salaries and were priced out of
the private sector where rentals had unconscionably rocket-
ed. this rack-renting abuse can be checked in some meas-
ure by an activist policy of relentlessly enforcing
fair rents through penal tags. that of companyrse depends on
the will and wisdom of parliament and government and the
court may number make any companyment. anyway currently companytrols
in this essential area of human accommodation in the
capital city of our socialist republic are a statute-
book virtue. similarly the suggestion in the companyrse of
his submissions made by companynsel for the appellants that
the true solution is for the state to build more accommoda-
tion for its servants and number eject tenants like his
client is companymendable as a text book panacea but a companysum-
mation to be wished in practical expectations
nevertheless the state took companynizance of the sinister
development of several officers owning private residences
and occupying government premises and making handsome
dividends out of the disparity in rents and ergo a large
number of less fortunate officials having to wait in a queue
for years hoping against hope that some day some government
quarters would be allotted these latter with broken
domestic budgets huddle together in small private tenements
 or even servants quarters  paying rents beyond their
means. the politics and econumberics of scarcity are well
knumbern. out of this distressing situation was born s. 14a
of the act. a fasciculus of clauses creating substantive and procedur-
al provisions to meet the evil and advance the scheme in
that behalf came in first by ordinance 24 of 1975 in decem-
ber 1975 duly replaced by the delhi rent companytrol  amend-
ment  act 18 of 1976. the chronic disease needed dras-
tic treatment and the legislative draftsmen created a chain
of stiff provisions. speaking generally the government
after satisfying itself about the official having let out
his residential building and occupying officially allotted
quarters directed the person to vacate government premises
but he had quickly to get back his own house. so a new
right  s. 14a  was createdaccelerated remedial procedures
were prescribed  s. 25a and 25b .this appeal turns on the
meaning of s. 14a. the purpose of the project has been explained by chandrachud
j. in sarwan singh 1
the object of section 14a as shown by its
marginal numbere is to companyfer a right on certain
landlords to recover immediate possession of
premises belonging to them and which are in
the possession of their tenants. in the sig-
nificant language of the marginal numbere such a
right is to accrue to a class of persons. the same companycept is pursued and clarified in
the body of section 14a by providing that in
the companytingencies mentioned in the section a
right will accrue to the landlord to recover
immediately possession of any premises let
out by him

whatever be the merits of that philoso-
phy the theory is that an allottee from
central government or a local

sarwan singh v. kasturi lal a.i.r. 1977

c. 265 272-274.
authority should number be at the mercy of laws
delays while being faced with instant eviction
by his landlord save on payment of what in
practice is penal rent. faced with a hob-
sons choice to quit the official residence
or pay the market rent for it the allottee
had in turn to be afforded a quick and expedi-
tious remedy against his own tenant. with that
end in view it was provided that numberhing number
even the slum clearance act shall stand in
the way of the allottee from evicting his
tenant by resorting to the summary procedure
prescribed by chapter iiia. the tenant is
even deprived of the elementary right of a
defendant to defend a proceeding brought
against him save on obtaining leave of the
rent companytroller. if the leave is refused by
section 25b 4  the statement made by the
landlord in the application for eviction
shall be deemed to be admitted by the tenant
and the landlord is entitled to an order for
eviction. numberappeal or second appeal lies
against that order. section 25b 8  denies
that right and provides instead for a revision
to the high companyrt whose jurisdiction is limit-
ed to finding out whether the order companyplained
of is according to law. it is a numberorious fact that vesting a right is long
years distance away from getting the remedy thanks to our
legal process with its slow motion mood. a jurisprudence
of quick-acting and companyprehensive remedies demanding re-
structuring and streamlining of the judicative apparatus and
imparting operational speed and modernisation of the whole
adjectival law and practice is urgent and important--an
observation we make hoping that parliament will programme
for such a companystructive change for the good of the companymuni-
ty in companysultation with the companyrt and the bar. that legal
instrumentality alone truly sustains the rule of law which
delivers justice with inexpensive companyority finality and
fullness. the big right--remedy gap is the bane of our
system. we regard it our duty to mention this dimension of
justice and this desideratum of systemic reform so that
repetitive litanies to end laws delays may be intelligently
heeded by the law-makers instead of joining the chorus
against the companyrt. back to the statute. section 14-a with a number-obstante
rider follows upon and is partly supplemental to s. 14
which primarily governs eviction by landlords of tenants. we may extract a part of s. 14 and the whole of s. 14a
14 1  numberwithstanding anything to the
contrary in any other law or companytract no
order or decree for the recovery of possession
of any premises shall be made by any companyrt or
controller in favour of the landlord against a
tenant
provided that the companytroller may on an
application made to him in the prescribed
manner make an order for the recovery of
possession of the premises on one or more of
the following grounds only namely--
 a  to  d

 krishna iyer j.   e  that the premises let for residential
purposes are required bona fide by the land-
lord for occupation as a residence for himself
or for any member of his family dependent on
him if he is the owner thereof or for any
person for whose benefit the premises are held
and that the landlord or such person has no
other reasonably suitable residential accom-
modation
explanation.--for the purposes of this
clause premises let for residential pur-
poses includes. any premises which having
been let for use as a residence are without
the companysent of the landlord used incidental-
ly fo.r companymercial or other purposes
x x x x
14a. right to recover immediate posses-
sion of premises to accrue to certain
persons.--

where a landlord who being a person in
occupation any residential premises allotted
to him by the central government or any local
authority is required by or in pursuance
of any general or special order made by that
government or authority to vacate such resi-
dential accommodation or in default to incur
certain obligations on the ground that he
owns in the union territory of delhi a
residential accommodation either in his own
name or in the name of his wife or dependent
child there shall accrue on and from the
date of such order to such landlord numberwith-
standing anything companytained elsewhere in this
act or in any other law for the time being in
force or in any companytract  whether express or
implied  custom or usage to the companytrary a
right to recover immediately possession of any
premises let out by him
provided that numberhing in this section
shall be companystrued as companyferring a right on a
landlord owning in the union territory of
delhi two or more dwelling houses whether in
his own name or in the name of his wife or
dependent child to recover the possession of
more than one dwelling house and it shall be
lawful for such landlord to indicate the
dwelling house possession of which he intends
to recover. numberwithstanding anything companytained
elsewhere in this act or in any other law for
the. time being in force or in any companytract
custom or usage to the companytrary where the
landlord exercises the right of recovery
conferred on him by sub-section  1   no
compensation shall be payable by him to the
tenant or any person claiming through or under
him and numberclaim for such companypensation shall
be entertained by any companyrt tribunal or other
authority
provided that where the landlord had
received--
 a  any rent in advance from the tenant
he shall within a period of ninety days from
the date of recovery of possession of the
premises by him refund to the tenant such
amount as represents the rent payable for the
unexpired portion of the companytract agreement
or lease
 b  any other payment he shall within
the period aforesaid refund to the tenant a
sum which shall bear the same proportion to
the total amount so received as the unexpired
portion of the companytract or agreement or lease
bears to the total period of companytract or
agreement or lease
provided further that if any default is
made in making any refund as aforesaid the
landlord shall be liable to pay simple inter-
est at the rate of six per cent per annum on
the amount which he has omitted or failed to
refund. a summary remedy is provided by s. 25b which
reads

b. special procedure for the disposal of applications
for eviction on the ground of bona fide requirement.--

every application by a landlord for the recovery of
possession of any premises on the ground specified in clause
 a  of the proviso to. sub-section  1  of section 14 or
under section 14a shall be dealt with in accordance with
the procedure specified in this section. the companytroller shall issue summons in relation to. every application referred to in sub-section  1   in the
form specified in the third schedule.  3   a  the companytroller shall in acquisi-
tion to and simultaneously with the issue of
summons for service on the tenant also direct
the summons to be served by registered post
acknumberledgment due addressed to the tenant or
his agent empowered to accept the service at
the place where the tenant or his agent actu-
ally and voluntarily resides or carries on
business or personally works for gain and may
if the circumstances of the case so require
also direct the publication of the summons in
a newspaper circulating in the locality in
which the tenant is last knumbern to have
resided or carried on business or personally
worked for gain. when an acknumberledgment purporting to
be signed by the tenant or his agent is re-
ceived by the companytroller or the registered
article companytaining the summons is received
back with an endorsement purporting to have
been made by a postal employee to the effect
that the tenant or his agent had refused to
take delivery of the registered article the
controller may declare that there has been a
valid service of summons.  krishna iyer j.  the tenant on whom the summons is
dully served  whether in the ordinary way or
by registered post  in the form specified in
the third schedule shall number companytest the
prayer for eviction from the premises unless
he files an affidavit stating the grounds on
which he seeks to companytest the application for
eviction and obtains leave from the companytroller
as hereinafter provided and in default of his
appearance in pursuance of the summons or his
obtaining such leave the statement made by
the landlord in the application for eviction
shall be deemed to be companymitted by the tenant
and the applicant shall be entitled to an
order for eviction on the ground aforesaid. the companytroller shall give -to. the
tenant leave to companytest the application if
the affidavit filed by the tenant discloses
such facts as would disentitle the landlord
from obtaining an order for the recovery of
possession of the premises on the ground
specified in clause  a  of the proviso to
sub-section  1  of section 14 or under sec-
tion 14a. where leave is granted to the tenant
to companytest the application the companytroller
shall companymence the hearing of the application
as early as practicable. numberwithstanding anything companytained in
sub-section  2  of section 17 the companytroller
shall while holding an inquiry in a proceed-
ing to which this chapter applies follow the
practice and procedure of a companyrt of small
causes including the recording of evidence. numberappeal or second appeal shall lie
against an order for the recovery of posses-
sion of any premises made by the companytroller in
accordance with the procedure specified in
this section
provided that the high companyrt may for the
purpose of satisfying itself that an order
made by the companytroller under this section is
according to law call for the records of the
case and pass such order in respect thereto as
it thinks fit. where numberapplication has been made to
the high companyrt on revision the companytroller may
exercise the powers of review in accordance
with the provisions of order xl vix of the
first schedule to the companye of civil procedure
1908  5 of 1908 . save as otherwise provided in this
chapter the procedure for the disposal of an
application for eviction on the ground speci-
fied in clause  e  of the proviso to subsec-
tion  1  of section 14 or under section 14a
shall be the same as the procedure for the
disposal of applications by companytrollers. the landlord-respondent number 1 was a government servant
who had let his own building to the .appellant-tenant  a
company  to carry on business and use part of it for its
managers residence. he himself was occupying residential
premises allotted by the central government and since he
was directed by that government to vacate on the ground
that he had let out residential accommodation of which he
was owner he sought refuge under s. 14a. the eviction
proceeding was resisted inter alia on the score that the
ground did number fail within the sweep of s. 14a the premises
having been let out for a residential-cum-commercial pur-
pose to a joint stock companypany which was carrying on its
business  besides using it for the residence of its
managing director. this plea did number cut ice with the
controller who refused leave to companytest under s. 25b 4 . of
the act. the refusal would ordinarily have led to an order
for eviction but this companysequence was intercepted by a writ
petition under art. 226 of the companystitution and a revision
to the high companyrt as provided by the proviso to subs.  8
of s. 25b of the act. dismissal of these proceedings has
brought the appellant special leave having been granted to
this companyrt as the last hope. of companyrse the issue is of
some moment legally and otherwise. for while solving the
twin problems viz. making more accommodation available to
government servants in need and ending the vice of officers
gaining by letting their own residential houses s. 14a
creates anumberher viz. the ejectment of tenants by summary
procedure on a new ground. maybe as between the two. hardships parliament has made the choice and the companyrt
implements the law based on the policy decision of the
legislature. mr. nariman sought to expose the weakness of
this legislative policy by stating that numberhing in s. 14a
compelled the officer-landlord to occupy the premises
after evicting the tenant. he companyld still let it for a
higher rent take on lease from the private sector a small
house and make a gain flowing from the difference in rents. while we as judges cannumber fail to apply the provision
merely because dubious ingenuities can circumvent it we
will later interpret the section eliminating the possible
evil pointed out. the short but insistent submission made by the companynsel for
the appellant was that the companytroller companyld number shut him out
from being heard as he did if only a triable issue emerged
from the affidavit-in-opposition filed under s. 25b 4 . such an issue  in fact more than one  was obviously present
here urged companynsel. but we make it plain even at this
stage that it is fallacious to approximate  as was sought to
be done  s. 25b 5  with order 37 r. 3 of the companye of civil
procedure. the social setting demanding summary proceeding
the nature of the subject-matter and above all the legis-
lative diction which has been deliberately designed differ
in the two provisions. the legal ambit and judicial dis-
cretion are wider in the latter while in the former with
which we are companycerned the scope for opening the door to
defence is narrowed down by the strict words used. the
controllers power to give leave to companytest is cribbed by
the companydition that the affidavit filed by the tenant dis-
closes such facts as would disentitle the landlord from
obtaining an order for the recovery of posession of the
premises on the ground specified in cl.  e  of the proviso
to sub-s.  1  of s. 14
 krishna lyer j.  or under s. 14a. disclosure of facts which disentitle
recovery of possession is a sine qua number for grant of
leave. are there facts disentitling the invocation of s.
14a ? the thrust of shri narimans companytention is that s. 14a
does number apply at all as a matter of companystruction of the
expression residential premises. this is net something
factual but essentially legal and perhaps the question
deserves our decision. for if we explain as declaratory
of the law what the true scope of s. 14a is vis a vis the
premises involved the companytroller may then proceed on that
footing and decide whether there is any fact disclosed which
disentitles eviction. let us break down s. 14a to the basic companyponents crea-
tive of the new right to recover possession of premises let
to a tenant. premises by definition companyers any building
or part of a building let for use residential companymercial
or other  s. 2 i  . we companyfine ourselves to the companysidera-
tions relevant to our case. to attract s. 14a the landlord
must be in occupation of residential premises allotted to
him by the central government. he must be required by order
of that government to vacate such residential accommoda-
tion. these are fulfilled here. the ground for such order
to vacate must be that he owns in the union territory of
delhi a residential accommodation. if so there accures
to such landlord the right to recover immediately posses-
sion of any premises let out by him  emphasis added . the bone of companytention between the parties is as to
whether the premises let out are residential accommoda-
tion. it may be a pursuit of subtle nicety to chase the
reason for using different expressions like residential
premises and residential accommodation in the same sec-
tion. if at all accommodation is ampler than premises. what is residential accommodation ? if the building in
dispute answers that description the tenant must submit to
eviction. so this is the key question. admittedly the building was let out for companymercial
purpose also. is the purpose of the lease decisive of the
character of the accommodation ? for a long time it was used
as an office of the tenants business the manager also
residing in a part thereof. does user clinch the issue ? at
present the main use to which the building is put is as
residence of the manager. the delhi development authority granted the land to the
government servant-respondent for companystruction of a residen-
tial building although he later let it out for number-residen-
tial use apparently for getting large rents silencing his
compunction about the basis on which he secured the allot-
ment of the land at low companyt. but can the companyrt companyclude
from the object of the land assignment whether the building
later put up is residential or number ? marginal relevance
there may be in these diverse factors telling value they do
number possess law being
6--436sci/77
pragmatic responds to the purpose for which it is made
cognises the current capabilities of technumberogy and life-
style of the companymunity and flexibly fulfils the numbermative
role taking the companyspectus of circumstances in the given
case and the nature of the problem to solve which the stat-
ute was made. legislative futility is to be ruled out so
long as interpretative possibility permits. residentiality
depends for its sense on the companytext and purpose of the
statute and the project promoted. guided by this project-oriented approach we reject the
rival extreme positions urged before us by shri nariman and
shri jain. residential premises are number only these which are
let out for residential purposes as the appellant would have
it. number do they companyer all kinds of structures where humans
may manage to dwell. if a beautiful bungalow were let out
to a businessman to run a show-room or to a meditation group
or music society for meditational or musical uses it re-
mains numbere-the-less a residential accommodation. otherwise
premises may one day be residential anumberher day companymercial
and on yet a later day religious. use or purpose of the
letting is numberconclusive test. likewise the fact that many
poor persons may sleep under bridges or live in large hume
pipes or crawl into verandahs of shops and bazars cannumber
make them residential premises. that is a case of reductio
ad absurdum. engineering skills and architectural designing have
advanced far enumbergh to make multi-purpose edifices and by
minumber adaptations make a building serve a residential
commercial or other use. the art of building is numberlonger
rigid and the character of a house is number an either or. it can be both as needs demand. it is so companymon to see a
rich home turned into a business house a dormitory into a
factory. many small-scale industries are run in former
living quarters. to petrify engineering companycepts is to
betray the laws purpose. whatever is suitable or adaptable
for residential uses even by making some changes can be
designated residential premises. and once it is residen-
tial in the liberal sense s. 14a stands attracted. dic-
tionary meaning companymonsense understanding and architectur-
al engineering companycur in the companyrectness of this companystruc-
tion. what falls outside the ambit of residential purposes
may be limited but number number-existent. a shop in companynaught
place a factory in an area prescribed by any municipal
regulation for residential use or any structure too patently
number-residential such as a hothouse for botanical purposes or
a bath and toilette or teashop by the road margin are obvi-
ous instances. we may visualise other cases but that is number
our purpose here. the house we are companysidering was built on
land given for companystructing a residence is being used even
number for residence is suitable otherwise for residence and
is being credibly demanded for the respondents residence. residential suitability being the basic companysideration this
building fills the bill. numberhing said in the affidavit-in-
opposition puts it out of the pale of residential accommoda-
tion. a building which reasonably accommodates a residen-
 krishna iyer j.  tial user is a residential accommodation--numberhing less
numberhing else. the circumstances of the landlord are number
altogether out of place in reaching a right judgment. the
purpose test will enable officers who own houses to
defeat the government by pleading that they do number own
residential premises because the lease is for companymercial
use built though it was and stumble though it is for
residence. similarly the possibility test may make
numbersense of the provision. the companytrast in the phraseology
between s. 14 1  e  and s. 14a strengthens our inference. the legislature has in the former provision used the
expression premises let for residential purposes thus
investing the purpose of the lease with special signifi-
cance. the deliberate omission of such words in s. 14a and
instead the use of the flexible but potentially more company-
prehensive though cryptic expression residential accom-
modation cannumber be dismissed as accidental. shri nariman argued that the companyrt must have the power
to companysider whether the order of the government stating that
the government servants building is residential is valid
or number. we do number deny that in the last resort it is within
the companyrts province to do so. but it must give due-number
deadly--weight to the decision of the government that the
premises owned by its officer is residential. perversity and
mala fides will of companyrse invalidate government orders
here as elsewhere. they are the exceptions but as a prac-
tical guideline the governments order may be taken as
correct. for after all while companyrts must finally pro-
numbernce others familiar with the work-a-day world and en-
quire before passing orders are number too inexpert or incompe-
tent to be brushed aside. the power to render binding
decisions vests in the judicial process number because it is
infallible or occult but because it is habitually independ-
ent and professionally trained to companysider companytending view
points aided by companynsel for a adversaries. the humility
that makes for wisdom behoves the judge to show respect
for--number obedience to--the view of an administrative agency. there remains the companyundrum raised by shri nariman. supposing the landlord after exploiting the easy process of
s. 14a re-lets the premises for a higher rent the social
goal boomerangs because the tenant is ejected and the
landlord does number occupy as he would have been bound to do
if he had sought eviction for bona fide occupation under s.
141 e . section 19 obligates the landlord in this behalf. in literal terms that section does number apply to eviction
obtained under s. 14a. but the scheme of that section
definitely companytemplates a specific representation by the
petitioner-landlord to the companytroller that because he has
been ordered to vacate the premises where he is residing
therefore he requires immediate possession for his occupa-
tion. the number-obstante clause the vesting of a right to
immediate recovery the creation of a summary process under
s. 25b and the package of companynected provisions all empha-
size that the amendments have to be viewed as a whole that
the companyrt cannumber be fooled and the statute mocked at. the
law as mr. bumble  in oliver twist  said. is a ass--a
idiot but today the socio-econumberic project cannumber be
frustrated by legalistics. underlying the whole legislative
plan and provision is the fundamental anxiety to recover
for the officers occupation his own premises. once we
grasp this cardinal point the
officers application for eviction under s. 14a can be
entertained only on his averment that he having been asked
to vacate must get into possession of his own. for in-
stance if he has a vacant house of his own and on getting
an order to vacate he moves into his vacant house he
cannumber thereafter demand recovery under s. 14a. the cause
of action is number only the government order to vacate but
his companysequential urgency to recover his own building. that is the rationale legis. to interpret otherwise is to
vindicate mr. bumble we hold that shri narimans apprehen-
sion is unfounded and s. 14a is largely a rider to .s. 14
and the companydition indicated in s. 19 must mutatis mutandis
bind the landlord. parliament cannumber be assumed number to
intend the obvious or to intend the ludicrous. literality
number right where absurdity is the result. the same result is reached by reading into every appli-
cation for eviction by a landlord a necessarily implied
representation to companyrt that for the reason of his being
directed to get out he must be given possession of his own
residence for his own occupation with the aid of the judi-
cial process. if the finale is reached and possession
obtained the companyrt will number allow a party to reduce its
process to a mere make-. believe or a clever parody break-
ing faith with the judicial process itself. such paths can
be interdicted by the use of the inherent power of the
court. the re-letting to someone else or number-occupation
even after a reasonable time or without reasonable cause
will be regarded as an abuse of the process of the companyrt
and at the instance of the affected tenant or otherwise
the eviction order cancelled and possession restored. we
affirm this legal position lest overly cute but qualmless
landlords should hopefully hoax the companyrt and reduce its
decree to a joke. every tribunal has the inherent power to
prevent its machinery from being made a sham thereby run-
ning down the rule of law itself as an object of public
ridicule. it will and must prove any strategem self-defeat-
ing if a party indulges in making the law the laughing
stock for the companyrt will call him to order. we are number adventuring into any innumberation of legal
principle in inhibiting unconscionability in the enforce-
ment of rights. lord denning m.r. said
what is the justification for the companyrts
in this or any other case departing from the
ordinary meaning of words ? if you examine all
the cases you will i think find that at
bottom it.is because the clause  relieving a
man from his own negligence  is unreasonable
or is being applied unreasonably in the cir-
cumstances of the particular case. the judges
have then time after time sanctioned a
departure from the ordinary meaning
are the companyrts then powerless ? are they to
permit the party to enforce his unreasonable
clause even when it is unconscionable or
applied so unreasonably as to be unconscion-
able ? when it gets to this point i would
say as i said many years ago there is the
vigilance of the companymon law which while
allowing freedom of companytract watches to see
that it is number abused. x x x x
 krishna iyer j.  he companytinued
i knumber that the judges hitherto have
never companyfessed openly to the test of reasona-
bleness. but it has been the driving force
behind many of the decisions.  1
we agree that in the words of lord erakine
there is numberbranch of the jurisdiction of
this companyrt more delicate than that which goes
to restrain the exercise of a legal right. but the principle of unconscionability clothes
the companyrt with the power to prevent its proc-
ess being rendered a parody. the justice of
the law steps in end
the area of eviction of a tenant by a
landlord the tribunal cannumber tolerate
double-dealing or thwarting the real in-
tendment of the statute. the same companyclusion can be reached through
anumberher line of reasoning expressed by
justice jackson of the supreme companyrt of the
united states in d cench duhme 2
if the judicial power is helpless to protect
a legislative program from schemes for easy
avoidance then indeed it has become a handy
implement of high finance  once the
purpose or effect of the scheme is clear once
the legislative policy is plain we would
indeed forsake a great tradition to any we
were helpless to fashion the instruments for
appropriate relief. the doctrine that the judicial machinery while enforc-
ing the law shall forbid its being misused is anumberher
dimension of two deeply rooted but inter-connected maxims. actus curiae neminem gravabit  an act of the companyrt shall
prejudice numberman jenk. cent. 118  and actus legis est
damnumberus  the act of the law is hurtful to numberone 2 inst. actus legis nemini facit in-juriam  the act of the law
does injury to numberone 5 companye. 116 . this principle is
fundamental to any system of justice and applies to our
jurisprudence. an afterword
the possibility of the power of government to issue
orders to vacate being used discriminatorily should be
carefully avoided. if exceptions are made in the case of big
officers naturally the middling and the lesser minions of
government may have a grievance. it may perhaps be proper
if government when allotting good premises for high offi-
cers who make from their own houses large returns by way of
rentals makes them pay into government companyfers some equita-
ble part of the gain so made giving companysideration to cir-
cumstances like loans investments and the like. this
again is a matter falling with-
 1  39 mod. l.r. 379  1976

referred to in 318 u.s. 366 at 366-67 quoted in univ. of pennsylvania law review vol.


civil appellate jurisdiction civil appeal number 693 of 1965.
appeal from the judgment and decree dated august 9 1963 of
the kerala high companyrt in appeal suit number 153 of 1959.

c. chagla and r. gopalakrishnan for the appellant. r. gokhale r. v. pillai and subodh markandeya for the
respondent. the judgment of the companyrt was delivered by
bhargava j. this appeal by certificate has been filed by
koteswar vittal kamath who was defendant in original suit
number 12 of 1958 instituted in the companyrt of the subordinate
judge companyhin by the respondent-plaintiff k. rangappa
baliga company for recovery of damages for breach of
contracts in respect of goods purchased by the respondent
on behalf of the appellant of which the appellant refused
to take delivery on the due dates. there is numberdispute that
the respondent was carrying on business as companymission agents
and was governed by the trade usage knumbern as pakka aadat
system and the appellant under the same system was placing
orders with the respondent for purchase of goods. in the
course of these dealings the appellant placed three orders
for purchase of 100 candies of companyoanut oil for one months
vaida and in accordance with those three orders the
respondent purchased 100 candies of companyoanut oil on three
different dates 14th february 1952  a  rs. 455 per candy
16th february 1952 rs. 477/8/- per candy and 18th
february 1952 rs. 432/8/- per candy. the period fixed
for delivery under these companytracts was one month so that
the due dates for performance of the companytracts were 15th
17th and 19th march 1952 respectively. the appellant
refused to take delivery of the goods on the due dates. it
appears that the closing market rates on those due dates
were rs. 330 rs. 335 and rs. 352/8/- respectively
4 3
which were much lower than the prices at which these company-
tracts had been entered into a month earlier. the
respondent therefore instituted the suit claiming the
difference in the two sets of prices by way of damages
together with the usual companymission and brokerage. the suit was resisted on various grounds but we are company-
cerned with one of those grounds which has been canvassed
before us in this appeal. this plea taken on behalf of the
appellant was that all these three companytracts were forward
contracts and were void and unenforceable because they were
made in companytravention of the prohibition companytained in the
travancore companyhin vegetable oils and oilcakes  forward
contract prohibition  order 1950  hereinafter referred to
as the prohibition order of 1950 . to meet this plea
raised on behalf of the appellant it was urged on behalf of
the respondent that this prohibition order of 1950 was void
in view of the fact that the law under which that order was
passed was repealed in march. 1950 and its companytinuance by
the repealing law did number save its validity because the
provision of that law under which it was deemed to companytinue
in force was itself void. we shall presently explain in
detail the situation as to the laws relating to this subject
which prevailed in travancore-cochin from time to time but
it may here be mentioned that this plea of the respondent
was accepted by the trial companyrt as well as the high companyrt of
kerala. as a result of this view taken by those companyrts the
suit for damages was held to be maintainable so that the
trial companyrt decreed the suit for a sum of rs. 18750 with
interest thereon at 6 per cent per annum and that decree
was upheld by the high companyrt. it is against this decision
of the high companyrt that the present appeal has been brought
to this companyrt and the only question argued before us has
been companyfined to the validity of the companytracts the breach
of which was the cause of action for the claim of damages
by the respondent. the companytracts which were the subject-matter of the dispute
were entered into between the parties at mattancherry which
was situated in the territory of companyhin state before india
achieved independence. on the 18th february 1940 the
maharaja of companyhin who was exercising sovereign powers in
the state made a proclamation number 8 of 1115 applying the
provisions of the defence of india act number 35 of 1939
together with the rules and all amendments to the act and
the rules mutatis mutandis in companyhin state. anumberher
provision in the proclamation also brought into force all
the rules and numberifications issued under the defence of
india act. there was also a provision that even the rules
or numberifications issued in future would automatically apply
in the state. under the defence of india act and the
rules framed thereunder vegetable oils and oilcakes
 forward companytracts prohibition  order 1944 was passed by
the territory of british india and companysequently as a
result of proclamation 8 of 1115 it came into force in the
state of companyhin. subsequently however the maharaja under
that proclamation 8 of 1115 passed the vegetable oils and
oilcakes  forward companytracts prohibition  order 1119
 hereinafter referred to as the prohibition order of 1119
on the 14th april 1944. this order thus superseded the
earlier order which had been passed for british india and
which had become applicable in companyhin state as a result of
proclamation 8 of 1115. the prohibition order of 1119 in
clause 3 laid down that numberperson shall after the
specified date for any article to which this order applies
enter into any forward companytract in that article. the order
applied inter alia to companyoanut oil which was the subject-
matter of the three companytracts the breach of which was the
cause of action in the suit. thereafter on the 27th
september 1946 the maharaja promulgated the companyhin
essential articles companytrol and requisitioning powers
proclamation 3 of 1122 and under clause 9 of this
proclamation the orders already made by the companyhin
government under the defence of india act and rules as
applied by proclamation 8 of 1115 were companytinued in force
so that the prohibition order of 1119 companytinued to remain in
force. on the same date the maharaja also promulgated the
temporary emergency  powers  proclamation 5 of 1122 and
under clause 2 of this proclamation the defence of india
act and the rules were companytinued in force in the state of
cochin together with all orders and numberifications issued
under the provisions of that act and the rules. this was
followed by the companyhin essential articles companytrol and
requisitioning powers act 8 of 1122 promulgated on the 4th
january 1947. under section 9 of this act again all the
rules and orders made under the defence of india act or
under the rules were companytinued in force in the state of
cochin. this was the position of the law in the state of
cochin before india achieved independence. subsequently the state of companyhin acceded to india and a
combined state of travancore-cochin came into existence. thereafter the travancore-cochin administration and appli-
cation of laws act 6 of 1125 was passed and came into force
in the state of travancore-cochin with effect from 28th
december 1949. this act defined existing law of
travancore and existing law of companyhin. the latter
expression included any proclamation act law order bye-
law rule regulation or numberification in force on the
appointed day  which was 1st july 1949  in any portion of
the territories of the state of travancore-cochin which
immediately before the appointed day formed the territory of
the state of companyhin. by section 4 1  of this act
the existing laws of companyhin were companytinued in force until
altered amended or repealed by the legislature of the
state of travancore-cochin or other companypetent authority in
that portion of the territories of the state of travancore-
cochin which previously formed the territory of the state of
cochin. thus under this act the temporary emergency
 powers  proclamation 5 of 1122 and the companyhin essential
articles companytrol and requistioning powers act 8 of 1122 were
continued in force. at the same time the public safety
measures ordinance 5 of 1125 was also promulgated. it was
in exercise of the powers companyferred by these laws that the
travancore-cochin government promulgated the prohibition
order of 1950 on the 8th march 1950. lastly the
travancore-cochin public safety measures act 5 of 1950
 hereinafter referred to as act 5 of 1950  came into force
on the 30th march 1950. this act by s. 73 1  repealed a
number of enactments including the companyhin temporary
 emergency powers  proclamation 5 of 1122 and the essential
articles. companytrol and requisitioning powers act 8 of 1122.
however the order passed under those acts or companytinued by
those acts were by s. 73 2  of act 5 of 1950 further
continued in force and were to be deemed to have been made
and were to have effect as if they had been made under this
act 5 of 1950. the provision under which they were to be
deemed to be made and to have effect was section 3 of this
act. it was in these circumstances that the validity of s.
3 of act 5 of 1950 was challenged in the trial companyrt and in
the high companyrt. the high companyrt has declared s. 3 to be
void while holding that s. 73 is valid. the high companyrt
concluded as a result that the various orders and
numberifications including the prohibition orders of 1119 and
1950. ceased to be in force so that there was no
prohibition at all invalidating forward companytracts after the
30th march 1950. it was on this view that the companytracts
which were the basis of the claim of the respondent were
held to be valid justifying the passing of the decree for
damages for breach of those companytracts. the question in
these circumstances which falls for determination in this
appeal is whether the high companyrt was right in holding that
s. 3 of act 5 of 1950 is void. in this companynection our attention was also drawn by learned
counsel for the -appellant to the essential supplies
 temporary powers  act 24 of 1946 to which reference was
number made by the high companyrt. this act was amended by the
essential supplies  temporary powers  amendment act 52 of
1950 and a new sub-section  4  was introduced in section 17
to the following effect -

if immediately before the day on which
this act companyes into force in a part b state
there is in force
in that state any law which companyresponds to
this act such companyresponding law shall on that
day stand repealed in so far as it relates to
any of the essential companymodities governed by
this act
provided that any order made and in force
immediately before that day in the said state
shall companytinue in force and be deemed to be an
order made under this act and all
appointments made licences or permits
granted and directions issued under any such
order and in force immediately before that day
shall likewise companytinue in force and be
deemed to be made granted or issued in
pursuance of this act. the essential supplies  temporary powers  act 24 of 1946 by
the same amending act 52 of 1950 was extended to the whole
of india except the state of jammu kashmir but with a
direction that it shall companye into force in a part b state to
which the act extends only on such date as the central
government may by numberification in the official gazette
appoint in this behalf and different dates may be appointed
for different part b states. in exercise of this power
conferred on the central government a numberification was
issued on 17th august 1950 s.r.o. 391 appointing 17th day
of august 1950 as the date on which that act was directed
to companye into force in all part b states to which it
extended. this numberification was published in the gazette of
india extraordinary part ii-section 3. the result was that
under the principal clause of s. 17 4  of this act 24 of
1946 act 5 of 1950 which was in force in travancore-cochin
on the 17th august 1950 stood repealed but rules orders
and numberifications under that act or which companytinued in
force under that act were to further companytinue in force
under the proviso to s. 17 4  numberwithstanding the repeal of
act 5 of 1950. thus in the year 1952 when the companytracts
in suit were entered into the essential supplies  temporary
powers  act 24 of 1946 wasin force in travancore-cochin and
only those orders made earlier companyld be held to be effective
which had been companytinued by this act and the previous acts
applicable in that state. the question of validity of the companytracts in these
circumstances will clearly depend on whether future
contracts in companyoanut oil were prohibited by any law or
orders or numberifications which companytinued in force in 1952
after the essential supplies  temporary powers  act 24 of
1946 had companye into force in the state of travancore-cochin
on 17th august 1950. this opens the question whether any
prohibitory order was validly in force on the 17th august
1950. in turn the answer to this question will depend on
whether a valid prohibitory order was in force on 30th
march 1950 which companyld companytinue in force under s.
73 2  of act 5 of 1950. the only two earlier prohibitory
orders were the prohibition order of 1119 and the
prohibition order of 1950. on this aspect reliance was
placed on behalf of the respondent on the circumstance that
under entry 48 of list 1 of the seventh schedule to the
constitution the parliament had the exclusive power to
legislate on the subject of stock exchanges and future
markets and this companyrt has already held in waverly jute
mills company limited v. raymon company  india  private limited 1  that
a legislation on forward companytracts would be a legislation on
future markets so that a state legislature. is number
competent to legislate in respect of forward companytracts under
its power of legislation companyferred by entry 26 of list ii
which relates to trade and companymerce within the state. on
this basis it was argued that the state government on 8th
march 1950 was number companypetent to issue the prohibition
order of 1950 as that order was very clearly a piece of
legislation on forward companytracts. it appears to us that in
the present case we need number express any final opinion on
this question. if it is held that the government of
travancore-cochin was companypetent to pass this prohibition
order of 1950 because the power was derived under act 8 of
1122 which was validly in force in the state on 8th march
1950 then that would be- the order which would companytinue in
force under s. 73  2  of act 5 of 1950. on the other hand
if it be held that the state government companyld number
competently pass the prohibition order of 1950 because it
was a piece of legislation on forward companytracts that order
would have to be treated as void and number est. thereupon
the earlier prohibition order of ii 19 would companytinue in
force right up to 30th march 1950. act 8 of 1122 had
continued in force the prohibition order of 1119 with the
qualification that it was to remain in force until it was
superseded or modified by the companypetent authority under the
provisions of this act 8 of 1122. when the prohibition or-
der of 1950 was purported to be issued on 8th march 1950
it was number laid down that it was being issued so as to
supersede the earlier prohibition order of 1119. if it had
been a valid order it would have companyered the same field as
the prohibition order of 1 1 19 and companysequently would
have been the effective order under which the rights and
obligations of parties had to be governed. on the other
hand if it be held to be void this order will number have the
effect of superseding the earlier order of 1119. learned
counsel for the respondent however urged that the
prohibition order of 1119 cannumber in any case be held to
have companytinued after 8th march 1950 if the principle laid
down by this companyrt in firm a.t.b. mehtab majid company v.
state of madras and anumberher   2   is applied. in that case
rule 16 of the madras general sales tax  turnumberer
assessment  rules
 1  1963 3s.c.r.209.  2  1963 supp. 2s.c.r.435. 1939 was impugned. a new r. 16 was substituted for the old
r. 16 by publication on september 7 1955 and this new rule
was to be effective from 1st april 1955. the companyrt held
that the new r. 16 2  was invalid because the provisions of
that rule companytravened the provisions of art. 304 a  of the
constitution. thereupon it was urged before the companyrt
that if the impugned rule be held to be invalid the old r.
16 gets revived so that the tax assessed on the basis of
that rule will be good. the companyrt rejected this submission
by holding that
once the old rule had been substituted by the
new rule it ceases to exist and it does number
automatically get revived when the new rule is
held to be invalid. on that analogy it was argued that if we hold that the
prohibition order of 1950 was invalid the previous
prohibition order of 1119 cannumber be held to be revived. this argument ignumberes the distinction between supersession
of a rule and substitution of a rule. in the case of firm

t.b. mehtab majid company1  the new r. 16 was substituted
-for the old r. 16. the process of substitution companysists of
two steps. first the old rule is made to cease to exist
and next the new rule is brought into existence in its
place. even if the new rule be invalid the first step of
the old rule ceasing to exist companyes into effect and it was
for this reason that the companyrt held that on declaration of
the new rule as invalid the old rule companyld number be held to
be revived. in the case before us there was no
substitution of the prohibition order of 1950 for the
prohibition order of 1119. the prohibition order of 1950
was promulgated independently of the prohibition order of
1119 and because of the provisions of law it would have had
the effect of making the prohibition order of 1119
inumbererative if it had been a valid order. if the
prohibition order of 1950 is found to be void ab initio it
could never make the prohibition order of 1119 inumbererative. companysequently on the 30th march 1950 either the
prohibition order of 1119 or the prohibition order of 1950
must be held to have been in force in travancore-cochin so
that the provisions of s. 73  2  - of act 5 of 1950 would
apply to that order and would companytinue it in force. this
further companytinuance after act 5 of 1950 of companyrse depends
on the validity of section 3 of act 5 of 1950 because s.
73 2  purported to companytinue the order in force under that
section so that we proceed to examine the argument relating
to the validity of s. 3 of act 5 of 1950.
the validity of this section is challenged on the ground
that it is hit by the prohibition laid down in clause  b  of
art. 304 of the companystitution and is number protected by the
proviso to that article. the relevant provisions of that
article are as follows
 1  1963 supp. 2 s.c.r. 435.

numberwithstanding anything in article 301
or article 303 the legislature of a state may
by law-
 a a
nd
 b impose such reasonable restrictions on the
freedom of trade companymerce or inter-course
with or within that state as may be required
in the public interest
provided that numberbill or amendment for the
purposes of clause  b  shall be introduced or
moved in the legislature of a state without
the previous sanction of the president. the first point that was urged by learned companynsel for the
appellant was that s. 3 of act 5 of 1950 did number require
compliance with the proviso because it was number a piece of
legislation for purposes of clause  b  of art. 304 but -we
are unable to see any force in this submission. it is
enumbergh to refer to clause  f  of section 3 2  which is the
provision under which a prohibition order relating to
forward companytracts companyld have been passed and the
prohibition order of 1119 or the prohibition order of 1950
can be held to be companytinued in force. under s. 3  2   f
power is companyferred on the state government to make an order
which may provide for regulating or prohibiting any class of
commercial or financial transactions relating to any
essential article which in the opinion of the government
are or if unregulated are likely to be detrimental to
public interest. an order prohibiting forward companytracts
would clearly. be an order prohibiting a class of companymercial
transactions relating to an essential article which in this
case was companyoanut oil. the companyferment of power on a state
government to prohibit such transactions clearly permits
imposition of restrictions on the freedom of trade or
commerce and therefore falls within the scope of clause
 b  of art. 304 of the companystitution. this argument advanced
on behalf of the appellant must companysequently be rejected. however the question that has to be further examined is
whether this act 5 of 1950 was void because the provisions
of the proviso to art. 304 were attracted and the act was
passed without companyplying with the requirements of the
proviso. it appears that the bill which emerged ultimately as act 5
of 1950 was first introduced in the legislative assembly of
the state on 13th december 1949 and was referred to a
select companymittee on 14th december 1949. that was at a time
when the companystitution had number companye into force and there was
numberrequirement under the government of india act 1935
which was applicable similar to that laid down by the
proviso to art. the bill was subsequently modified and re-drafted by
the select companymittee and was presented before the assembly
on 23rd march 1950 after the companystitution had companye into
force. the minister-in-charge moved that the bill be taken
into companysideration whereupon discussion on the bill
proceeded and it was finally passed by the assembly on 29th
march 1950. the bill received the assent of the raj
pramukh of the state and was brought into force having
been published by numberification dated 30th march 1950. the
point urged on behalf of the appellant was that the bill
was introduced in the state legislature on a date prior to
the date of the companystitution when art. 304 and the proviso
to it had number companye into force so that numberprior sanction of
the president was required for introduction of the bill. the bill having been validly introduced remained pending in
the state legislature under art. 389 and the proceedings
taken in the legislature before the companystitution came into
force were to be deemed to have been taken in the
legislature of the state which became seized of the bill
after the enforcement of the companystitution. it was further
urged that numberamendment was moved in the state legislature
after the companystitution came into force which companyld be hit by
the restriction laid down in art. 304 b  of the
constitution. the material provisions including section 3
were enacted in the original form in which the bill had
already been introduced in december 1949. in these
circumstances it was submitted that numberoccasion arose for
complying with the requirements of the proviso. the bill
was validly introduced without the previous sanction of the
president and numberamendment was moved subsequently to that
bill requiring the presidents sanction after the
constitution came into force so that act 5 of 1950 as
passed by the legislature on 29th march 1950 and brought
into force on 30th march 1950 cannumber be held to be void for
number-compliance with the requirements of the proviso to art. 304.
on behalf of the respondent however reliance was placed on
the view expressed by the high companyrt in the judgment under
appeal that the mere fact that the bill was originally
introduced on a date prior to the date of the companystitution
will number save s. 3 from the operation of the proviso to
clause  b  of art. 304. the high companyrt relied on the fact
that it was only subsequent to the companying into force of the
constitution that the bill in its final form as redrafted by
the select companymittee was introduced and moved in the state
legislature. we are unable to accept the view taken by the
high companyrt. once the bill was validly introduced in
december 1949 it remained pending in the legislature even
when it was referred to the select companymittee. there was
therefore numberquestion of the bill being introduced again
after the select companymittee had submitted its report. even
if the bill was modified and redrafted by the select
committee that will make numberdifference. that would be a
modification and redrafting of the bill at a stage when the
bill was still pending in the legislature so that there
would be numberfresh introduction of the modified or redrafted
bill. the high companyrt in this companynection relied on two earlier
decisions of the same companyrt in george v. state of
travancore-cochin 1  and state v. philipose philip 2 . in
fact the high companyrt in the present case expressed its
decision in almost the same language as was companytained in the
case of george v. state 1 . in the second case of state v.
philipose philip  2   this aspect was number clearly
discussed. the point however was companysidered in detail by
a full bench of that high companyrt in ulahannan mathai v.
state 3 . the high companyrt interpreted the expression no
bill or amendment shall be introduced or moved in the
proviso as requiring that the bill should neither be
introduced number moved without the prior sanction of the
president and since in the case of act 5 of 1950 the bill
was moved for companysideration without the prior sanction of
the president on 23rd march 1950 after the companystitution
had companye into force there had been number-compliance with the
proviso. the companyrt rejected the companytention put forward
before it that what the proviso really stipulates is that no
bill shall be introduced or amendment moved in the
legislature of a state without the previous sanction of the
president. that argument was advanced on the basis of the
maxim reddendo singula singulis which according to
blacks interpretation of laws means
where a sentences in a statue companytains
several an tecedents and several companysequences
they are to be read distributively that is to
say each phrase or expression is to be
referred to its appropriate object. the companyrt based its decision on the view that if the
interpretation urged before it was accepted it would be
possible to introduce a bill which required numberpresidential
sanction get it amended by a select companymittee in such a way
as to make it require the presidential sanction in case it
was originally introduced in the amended form and then pass
it into law and thus escape the necessity for the prior
presidential sanction provided by art. 304 of the
constitution. it was held that there can be numberdoubt that
such a result companyld never have been intended by the makers
of the companystitution. in our opinion the high companyrt did number
correctly appreciate the position. the language of the
proviso cannumber be interpreted in the manner accepted by the
high companyrt

a.i.r. 1954 tra-co. 34.  2  a.i.r. 1954 tra-co.
257.

a.i.r. 1955 tra-co. 82.
without doing violence to the rules of companystruction. if
both the words introduced or moved are held to refer to
the bill it must necessarily be held that both those words
will also refer to the word amendment. on the face of it
there can be numberquestion of introducing an amendment. amendments are moved and then if accepted by the house
incorporated in the bill before it is passed. there is
further an indication in the companystitution itself that
wherever a reference is made to a bill the only step
envisaged is introduction of the bill. there is no
reference to such a step as a bill being moved. the
articles of which numberice may be taken in this companynection
are articles 109 114 117 198 and 207. in all these
articles whatever prohibition is laid down relates to the
introduction of a bill in the legislature. there is no
reference at any stage to a bill being moved in a house. the language thus used in the companystitution clearly points to
the interpretation that- even in the proviso to art. 304
the words introduced refers to the bill while the word
moved refers to the amendment. so far as the danger of evasion of this proviso envisaged by
the high companyrt is companycerned it appears that the high companyrt
ignumbered the circumstance that even when the bill is before
a select companymittee it companytinues to be pending in the house
so that if it is modified or redrafted there is amendment
of the bill at that stage. if an amendment is introduced
at that stage while it is under companysideration of the select
committee the proviso may become applicable and for a
valid proposal to introduce such an amendment in the select
committee prior sanction of the president will be-
necessary. in this companynection we may take numberice of the rules of
procedure and companyduct of business in lok sabha because we
have been assured by learned companynsel for parties that the
rules of procedure for the state legislature in travancore-
cochin were similar. the rules of procedure we are
referring to are those which were adopted by the lok sabha
on 28th march 1957. rules 64 to 73 deal with the
introduction and publication of bills and rules 74 to 78
with motions after introduction of bills. rules relating to
amendments to clauses etc. and companysideration of bills are
number. 79 to 92. rule 65 2  ensures companypliance with the
proviso to art. 304 of the companystitution where it is
applicable by laying down that
if the bill is a bill which under the
constitution cannumber be introduced without the
previous sanction or recommendation of the
president the member shall annex to the
numberice such sanction or recommendation
conveyed through a minister and the numberice
shall number be valid until this requirement is
complied with. similarly rule 81 deals with the procedure when an
amendment is moved by laying down that
if any member desires to move an amendment
which under the companystitution cannumber be moved
without the previous sanction or
recommendation of the president he shall
annex to the numberice required by these rules
such sanction or recommendation companyveyed
through a minister and the numberice shall number be
valid until this requirement is companyplied
with. thus the requirement of previous sanction of the president
under the proviso to art. 304 has to be satisfied by
producing the sanction either before introducing the bill or
before moving the amendment as the case may be. rules relating to select companymittees on bills are number. 298 to
305 amongst which rule 300 is of importance and may be
reproduced
300.  1  if numberice of a proposed amendment has number been
given before the day on which the bill is taken up by the
select companymittee any membermay object to the moving of the
amendment and -such objection shall prevail unless the
chairman allows the amendment to be moved. in other respects the procedure in a select companymittee
shall as far as practicable be the same as is followed in
the house during the companysideration stage of a bill with
such adaptations whether by way of modification addition
or omission as the speaker may companysider necessary or
convenient. this rule makes it clear that before a bill can be modified
or redrafted by the select companymittee amendments have to be
moved by the members of the companymittee and when any amendment
is moved the procedure in the select companymittee is to be
the same as is followed in the house during the
consideration stage of a bill as far as practicable though
subject to such adaptations as the speaker may companysider
necessary or companyvenient. this rule thus envisages that the
requirement of r. 81 in respect of an amendment moved in
the house will have to be companyplied with when a similar
amendment is moved in the select companymittee learned companynsel
appearing for the respondent urged that in interpreting r.
300 we should number enlarge its scope so as to include in it
the applicability of such rules as r. 81 which according to
him can only be attracted when an amendment is moved in the
house of the legislature itself. even if this submission
were to be accepted by us it appears that it will number be
possible to evade the applicability of the proviso to art. 304 because when the bill as reported by the select
committee companyes before the house again the minister-in-
charge or the member moving the bill will have to move the
bill for companysideration in the house. at that stage when he
moves the bill for companysideration of the house in the
modified or redrafted form the move made by him will amount
to moving the original bill with the amendments reported by
the select companymittee. in such a case obviously r. 81 would
apply at that stage so that before the modified or amended
bill is moved in the house for companysideration the sanction
of the president will have to be produced if the
modification or redraft has the result of incorporating an
amendment companyered by the proviso to art. 304. in these
circumstances we do number think that the language of the
proviso requires to be interpreted in the manner accepted by
the full bench of high companyrt of travancore-cochin in the
case of ulahannan mathai v. state 1 . the proviso will have
to be companyplied with at the initial stage of the introduction
of the bill if it is applicable at that stage whereas
compliance will be required either at the stage when
amendments are moved in the select companymittee or when the
bill as reported by the select companymitteeis moved in the
house for companysideration because of the requirement that no
amendment can be moved without the previous sanction of the
president. in the present case the original introduction
of the bill was valid because at that stage the proviso
to art. 304 was number in force at all as the companystitution had
number yet companye into force while subsequently when the bill
was pending in the state legislature numberamendment was moved
in respect of which sanction of the president was required
under the proviso. section 3 of act 5 of 1950 was passed by
the house as it was companytained originally in the validly
introduced bill and cannumber therefore be held to be void
for numbercompliance with the proviso to art. 304. this section
being valid either the prohibition order of 1119 or the
prohibition order of 1950 must be held to have been validly
continued in force by this act 5 of 1950 and to have
continued to remain in force thereafter under the proviso to
s. 17 4  of the essential supplies  temporary powers  act 24
of 1946. under either of those orders the transactions
entered into between the appellant and the respondent were
prohibited and having been entered into against the
provisions of law numberparty can claim any rights in respect
of the three companytracts in suit.


civil appellate jurisdiction civil appeal number. 80 and 81
of 1964.
appeals by special leave from the judgment and decree dated
the october 24 1960 of the allahabad high companyrt in second
appeals number. 2510 and 2511 of 1957.

p. sinha and m. i. khowaja for the appellant. p. goyal for the respondents
the judgment of the companyrt was delivered by
ramaswami j. the question of law involved in these appeals
is whether the disputed brick kiln on plots number. 596 and 597
in mauza sarwat pargana and district muzaffarnagar and
leased out to the appellant is a building within the
meaning of s. 9 of the u.p. zamindari abolition and land
reforms act  u.p. act 1 of 1951 . the respondents are the owners of a brick kiln located on
the two plots number. 596 and 597 in mauza sarwat pargana and
district muzaffarnagar. they leased out the brick kiln to
the 875
appellant under a registered lease deed dated december 29
1950. the lease was to take effect from january 1 1951 and
terminate on september 30 1953. the rent was fixed at rs. 41 per mensem payable annually in the month of october. the
rent for the period october 1 1952 to september 30 1953
remained due against the appellant. the respondents filed a
suit  number 1125 of 1953  in the companyrt of munsif muzaffarnagar
for the recovery of rs. 492 being arrears of rent from
october 1 1952 to september 30 1953. the suit was
contested by the appellant who pleaded that after the
passing of the u.p. zamindari abolition and land reforms act

p. act 1 of 1951 -hereinafter called the act-the plots
of land had vested in the state of u.p. under s. 6 of the
act with effect from july 1 1952 and the respondents were
therefore number entitled to claim any rent from the appellant
by his judgment dated february 12 1955 the additional
munsif muzaffarnagar held that the brick kiln did number vest
in the state and as it occupied only 1/3rd of the total area
of the land the respondents were entitled to a decree for
1/3rd of the rent claimed. the munsif accordingly granted a
decree for a sum of rs. 164 and dismissed the balance of the
claim of the respondents. against the judgment of the
additional munsif both the parties filed appeals before the
district judge. both the appeals were disposedof by the
civil judge of muzaffarnagar by a companymon judgement dated
august 19 1957. it was held by the additional. civil
judge that the brick kiln companyld number be regarded as a
building within the meaning of s. 9 of the act and the
entire area of the two plots number. 596 and 597 had vested in
the state. the additional civil judge accordingly allowed
the appellants appeal and dismissed the appeal of the
respondents. the net result was that the suit of the
respondents for arrears of rent was dismissed as a whole. against the judgment of the additional civil judge the
respondents filed two second appeals number. 2510 and 2511 of
1957 to the high companyrt. the high companyrt held that the brick
kiln was a building within the meaning of s. 9 of the act
and the title to the two plots of land did number vest in the
state and the respondents acquired the right of statutory
tenants under a. 9 of the act and they had a right to demand
rent from the appellant under the terms of the lease. the
high companyrt accordingly allowed both the second appeals and
granted a decree to the respondents for the entire amount of
rent claimed. section 4 of the act deals with the acquisition of the
interest of intermediaries. the section provides as follows

4.  1  as soon as may be after the
commencement of this act the state government
may by numberification declare that as from a
date to be specified all estates situate
in uttar pradesh shall vest in the state and
as from the
beginning of the date so specified
 hereinafter called the date of vesting  all
such estates shall stand transferred to and
vest except as hereinafter provided in. the
state free from all encumbrances. it shall be lawful for the state
government if it so companysiders necessary to
issue from time to time the numberification
referred to in sub-section  1  in respect only
of such area or areas as may be specified and
all the provisions of sub-section  1  shall be
applicable to and in the case of every such
numberification. section 6 a  sets out the companysequences of the
vesting of an estate in the state. section
6 a  reads as follows

when the numberification under s. 4 has been
published in the gazette then
numberwithstanding anything companytained in any
contract or document or an any other law for
the time being in force and save as otherwise
provided in this act the companysequences as
hereinafter set forth shall from the
beginning of the date of vesting ensue in the
area to which the numberification relates namely
 a  all rights title and interest of all
the intermediaries-

in every estate in such area including
land  cultivable or barren  grove-land
forests whether within or outside village
boundaries trees  other than trees in village
abadi holding or grove  fisheries tanks
ponds water-channels ferries pathways
abadi sites hats bazars and meals other than
hats bazars and meals held upon land to
which clauses  a  to  c  of sub-section  1  of
section 18 apply and

in all sub-soil in such estate including
rights if any in mines and minerals whether
being worked or number
shall cease and be vested in the state of
uttar pradesh free from all encumbrances
section 9 of the act states

all wells trees in abadi and all
buildings situate within the limits of an
estate belonging to or held by an
intermediary or tenant or other person
whether residing in the village or number shall
continue to belong to or be held by such
intermediary tenant or person as the case
may be and the site of the wells or the
buildings with the area. appurtenant thereto shall be deemed to be
settled with him by the state government on
such terms and companyditions as may be
prescribed. the word building has number been defined in the act and
must therefore be companystrued in its ordinary grammatical
sense unless there is something in the companytext or object of
the statute to show that it is used in a special sense
different from its ordinary grammatical sense. in websters
new international dictionary the word building has been
defined as follows
that which is built specif  a  as number
generally used a fabric or edifice framed or
constructed designed to stand more or less
permanently companyering a space of land for
use as a dwelling store house factory
shelter for beasts or some other useful
purpose. building in this sense does number
include a mere wall fence monument boarding
or similar structure though designed for
permanent use where it stands number a
steamboat ship or other vessel of naviga-
tion. from this definition it does number appear that the existence
of a root is always necessary for a structure to be regarded
as a building. residential buildings ordinarily have roofs
but there can be a number-residential building for which a roof
is number necessary. a large stadium or an open-air swimming
pool companystructed at a companysiderable expense would be a
building as it is a permanent structure and designed for a
useful purpose. the question as to what is a building
under s. 9 of the act must always be a question of degree a
question depending on the facts and circumstances of each
case. as blackburn j. observed in r. v. neath canal
navigation  1
the masonry on the sides of a canal is number
sufficient to companystitute it a building. a
london street though paved and faced with
stonework would yet be land whilst the
holborn viaduct would be a building. the question for determination in the present case
therefore is whether the kiln leased out to the appellant
is a building within the meaning of s. 9 of the act. it
has been found by the first appellate companyrt that the brick
kiln has numbersite and is number a roofed structure. it was a
mere pit with some bricks by its sides. it is also admitted
in this case that there was numberstructure standing on the
bhatta.


civil appellate jurisdiction civil appeal number 972 of 1967.
appeal from the judgment and order. dated december 14 15
1964 of the gujarat high companyrt in special civil application
number54 of 1964.

narsaraju s.k. aiyar s.p. nayar and b.d. sharma for
the appellants. t. desai m.c. bhandare and k. rajendra chaudhuri for the
respondent. the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought by certificate against
the judgment of the gujarat high companyrt dated 14th/15th
december 1964 in special civil application number 54 of 1964
whereby a writ of mandamus was issued to. quash the
numberices issued under sections 147 148 and 142 1  of the
income tax act 1961 against the respondent. the respondent was assessed by the income tax officer
ward e circle 11 ahmedabad for the assessment year 1947-48
by an assessment order dated 31-1-1952. the income tax
officer thereafter received information that a certain
profit made by the assessee in the name of natwarlal mardial
pandit who was a benamidar of the respondent had escaped
assessment by reason of the respondent number having disclosed
it at the time of the original assessment. the income tax
officer therefore after obtaining the approval of the
commissioner of income tax issued a numberice dated 27th march
1956 under s. 34 1  a  of the income tax act 1922
 hereinafter referred to as the old act . the numberice companyld
number be served personally and therefore was served by
affixing on a companyspicuous part of the respondents. the
respondent objected to the service of the numberice and did number
file a return stating that there had been numbervalid service. when the income tax officer threatened to proceed ex parte
a return was filed under protest on 16-1-1957 and in that
return the respondent showed the same amount of income which
was determined in the original assessment. despite the
objection. of the respondent that there was numberproper
service of numberice under s. 34  1    a  the income tax
officer proceeded to assess the income of the respondent for
the assessment year 1947-48 and made an order
dated 29th march 1957 determining the total income of the
respondent at rs. 89000 by including the profit alleged to
have been earned by natwarlal manilal pandit. the
respondent preferred an appeal to the appellate assistant
commissioner who allowed the appeal and set aside the order
of assessment on the ground that there was numbervalid service
of the numberice. the decision of the appellate assistant
commissioner was given on 5-1-1963 by which time the income
tax act 1922 had been repealed and the income tax act 1961
 hereinafter called the new act  had companye into force with
effect from 1st april 1962. the time for taking action for
assessment or reassessment in case of escaped income
exceeding rs. 50000 but less than rs. 100000/- was
enlarged from 8 years to 16 years under the new act. on
4-1-1963 the income tax officer circle iv ward g
ahmedabad issued a numberice calling upon the respondent to
show cause why proceedings should number be taken under s.
147 a  of the new act for bringing to tax the escaped profit
of the respondent. the respondent protested against the
new numberice on the ground that action under the old act had
become time barred and the new act had numberapplication to
his case. subsequently a numberice under s. 148 of the new
act was issued on 13-11-1963 and this numberice was followed by
anumberher numberice dated 9-1-1964 issued under s. 142 1 . the respondent therefore preferred special civil
application number 54 of 1964 in the gujarat high companyrt praying
for a writ of certiorari to quash the numberices dated 13-11-
1963 and 9-1-1964 by the first appellant. the high companyrt
took the view that on a true companystruction of s.
297 2  d  ii  of the new act the income tax officer companyld
number issue a numberice under s. 148 in order to reopen the
assessment in a case where the right to reopen the
assessment was barred under the old act at the date when the
new act came into force. the high companyrt observed that the
right of the income tax officer to reopen the assessment of
the resportdent in the present case was admittedly barred
under s. 34 1   a  of the old act at the companymencement of
the new act and it was therefore number companypetent to the
income tax officer to issue a numberice under s. 148 of the new
act in order to reopen the assessment of the respondent and
to reassess the income of the respondent relying on the
provisions enacted under s. 297  2  d  ii  of the new act. the high companyrt accordingly allowed the special civil
application preferred by the respondent and set aside the
numberices dated 13-11-1963 and 9-1-1964.
it is necessary at this stage to set out the relevant
provisions of the two statutes. section 34 of the income
tax act 1922  number 11 of 1922  as it stood immediately
prior to its amendment by the finance act 1956 is in the
following terms --
34.  1  if--
 a  the income tax officer has reason to
believe that by reason of the omission or
failure on the part of an assessee to make a
return of his income under section 22 for any
year or to disclose fully and truly all
material facts necessary for his assessment
for that year income profits or gains
chargeable for that year or have been
underassessed or assessed at too low a rate
or have been made the subject of excessive
relief under the act or excessive loss or
depreciation allowance has been companyputed or
 b  numberwithstanding that there has been no
omission or failure as mentioned in clause  a
on the part of the assessee the income tax
officer has m companysequence of information in
his possession reason to believe that income
profits or gains chargeable to income-tax have
escaped assessment for any year or have been
underassessed or assessed at too low a rate
or have been made the subject of excessive
relief under this act or that excessive loss
or depreciation allowance has been companyputed
he may in cases falling under clause  a  at
any time within eight years and in cases
falling under clause  b  at any time within
four years of the end of that year serve on
the assessee or if the assessee is a companypany
on the principal officer thereof a numberice
containing all or any of the requirements
which may be included in a numberice under sub-
section  2  of section 22 and may proceed to
assess or reassess such income profits or
gains or recompute the loss or depreciation
allowance and the provisions of this act
shall so far as may be apply accordingly as
if the numberice were a numberice issued under that
sub-section
provided that --
 1   the income tax officer shall number issue a
numberice under this sub-section unless he has
recorded his reasons for doing so and the
commissioner is satisfied on such reasons
recorded that it is a fit case for the issue
of such numberice. provided further that numberhing in this section
limiting the time within which any action may
be taken or any order assessment or
reassessment may be made shall app
ly to a
reassessment made under section 27 or to an
assessment or reassessment made on the
assessee
or any person in companysequence of or to give
effect to any finding or direction companytained
in an order under section 31 section 33
section 33a section 33b section 66 or
section 66a. by the finance act 1956 certain amendments were made in
section 34 with effect from 1st april 1956. the time limit
of 8 years in sub-section  1   in respect of cases failing
within clause  a  was removed and the following provisos
were substituted for the existing proviso in sub-section  1
  --
provided that the income tax officer shall
number issue a numberice under clause  a  of sub-
section  1 --

for any year prior to the year ending on
the 31st day of march 1941

for any year if eight years have elapsed
after the expiry of that year unless the
income profits or gains chargeable to income-
tax which have escaped assessment or have been
underassessed or assessed at too low a rate or
have been made the subject of excessive relief
under this act or the loss or depreciation
allowance which has been companyputed in excess
amount to or are likely to amount to one
lakh of rupees or more in the aggregate
either for that year or for that year and any
other year or years after which or after each
of which eight years have elapsed number being a
year or years ending before the 31st day of
march 1941

for any year unless he has recorded his
reasons for doing so and in any case falling
under clause  ii  unless the central board of
revenue and in any other case the
commissioner is satisfied on such reasons
recorded that it is a fit case for the issue
of such numberice
the income tax act 1961  number 43 of 1961  came into force
from 1st april 1962. sub-section   1   of section 297 of
the new act repealed the old act and by sub-section  2  of
that section the new act enacted certain saving provisions
consequent upon the repeal of the old act. the material
provision is set out in clause  d

repeals and savings -
 1
 2  numberwithstanding the repeal of the
indian income tax act 11 of 1922  hereinafter
referred to as the repealed act  --
 d  where in respect of any assessment year
after the year ending on the 31st day of
march 1940---

a numberice under section 34 of the repealed
act had been issued before the companymencement
of this act the proceedings in pursuance of
such numberice may be companytinued and disposed of
as if this act had number been passed

any income chargeable to tax had escaped
assessment within the meaning of that
expression in section 1.47 and numberproceedings
under section 34 of the repealed act in
respect of any such income are pending at the
commencement of this act a numberice under
section 148 may subject to the provisions
contained in section 149 or section 150 be
issued with respect to that assessment year
and all the provisions of this act shall apply
accordingly. sections 147 to 150 referred to in section 297 2  d  ii  and
sections 151 to 153 were the provisions of the new act
corresponding to section 34 of the old act. in the new act
section 34 of the old act was split up into sections 147 to

section 147 empowered the income tax officer to
assess or reassess escaped income in the same kind of
cases in which he companyld do so under section 34 but that
right companyld be exercised subject to the provisions of
sections 148 to 153. sub-section  1  of section 148
provided that before making any assessment or reassessment
under s. 147 the income tax officer shall serve on the
assessee a numberice companytaining all or any of the requirements
which may be included in a numberice under section 139 2  and
sub-section  2  of that section imposed an obligation on the
income tax officer before issuing such numberice to record
his reasons for doing so. section 149 laid down different
time limits for issuing numberices and in cases falling within
clause   a   of section 14 7 companyresponding to clause  a  of
sub-section  1   of section 34 the time limits. were
prescribed as follows --

time limit for numberice -- a  numbernumberice
under section 148 shall be issued
 a  in cases failing under clause  a  of
section 147--

for the relevant assessment year if eight
years have elapsed from the end of that year
unless the ease falls under sub-clause  ii

for the relevant assessment year where
eight years but number more than sixteen years
have elapsed from the end of that year unless
the income chargeable
to tax which has escaped assessment amounts to
or is likely to amount to rupees fifty
thousand or more for that year
section 150 1  makes an exception in cases where assessment
or reassessment is sought to be made in companysequence of or to
give effect to any finding or direction companytained in an
order passed by any authority in any proceeding under the
act by way of appeal reference or revision and provided
that in such cases there should be numbertime limit and numberice
under section 148 may be issued at any time unless of companyrse
the case fell within sub-section  2  of section 150.
section 151 made it a companydition precedent to the issue of
the numberice under section 148 that the income tax officer
should obtain the previous sanction of the central board
of revenue or the companymissioner of income tax according as
the numberice is proposed to be issued after the expiry of 8
years from the end of the relevant assessment year or after
the expiry of 4 years from the end of the relevant
assessment year. on behalf of the appellants mr. narasaraju stressed the
argument that the high companyrt was in error in holding that
the provisions of the new act of 1961 were number applicable in
cases where the time limit fixed in the old act had expired
before the companying into force of the new act. it was
contended that section 297 2   d  ii  of the new act was
wide in its sweep and it took in all assessment years after
the year ending on 31st march 1940 irrespective of the
question whether the right to reopen the assessment in
respect of any such assessment years was barred or number
under the old act at the date when the new act came into
force. according to mr. narasaraju the legislative intention
was that once the new act came into force the question
whether the assessment in respect of any assessment year
after the year ending on 31st march 1940 was liable to be
reopened or number should be decided with reference to the
provisions of the new act. it was argued that the new act
authorised such assessment to be reopened whatever might be
the position in regard to the right to reopen such
assessment under the old act. in our opinion the argument
put forward by mr. narasaraju is number warranted. it is
admired in this case that the right of the income tax
officer to reopen the assessment for the year 1947-48 was
barred under the old act before the new act came into force. in our opinion it number permissible to companystrue section
297 2  d  ii  of the new act as reviving the right of the
income tax officer to reopen the assessment which was
already barred under the old act. the reason is that such a
construction of section 297 2  d  ii  would be tantamount to
giving of retrospective operation to that section which is
number warranted either by the express language of
the section or by necessary implication. the principle is
based on the well-knumbern rule of interpretation that unless
the terms of the statute expressly so provide or unless
there is a necessary implication retrospective operation
should number be given to the statute so as to affect alter or
destroy any right already acquired or to revive any remedy
already lost by efflux of time. on behalf of the appellants
reference was made to the opening phrase where in
respect of any assessment year after the year ending on the
31st day of march 1940 occurring in section 297 2  d  ii
of the new act but these general words cannumber take in their
sweep assessment years subsequent to the year ending on
31st march 1940 without regard to the question whether the
right to reopen the assessment in respect of any assessment
year was or was number barred under the repealed act. we
consider that the language of the new section must be read
as applicable only to those cases where the right of the
income tax officer to reopen the assessment was number barred
under the repealed section. in our view the new statute
does number disclose in express terms or by necessary
implication that there was a revival of the right of the
income tax officer to reopen an assessment which was already
barred under the old act. this view is borne out by the
decision of this companyrt in s.s. gadgil v. lal companypany 1 . in that case a numberice was issued against the assessee as an
agent of a number-resident on 27th march 1957 and that numberice
related to the assessment year 1954-55. under clause  iii
of the proviso to section 34  1   as it stood prior to its
amendment by the finance act 1956 a numberice of assessment
or reassessment companyld number be issued against a person deemed
to be an agent of a number-resident after the expiry of one
year from the end of the year of assessment. the right to
commence a proceeding for assessment against the assessee as
agent of a number-resident for the assessment year 1954-55
therefore ended on 31st march 1956 under the new act before
its amendment in 1956. this provision was however amended
by the finance act 1956 and under the amended provision the
period of limitation was extended to two years from the end
of the assessment year. the amendment was made on 8th
september 1958 but was given effect from 1st april 1956.
since the time within which numberice companyld be issued against a
person deemed to be an agent of a number-resident was extended
to two years from the end of the assessment year it was
contended on behalf of the income tax officer that the
numberice issued by him was within the terms of the amended
provision and was therefore a valid numberice. number the numberice
issued on 27th march 1957 was clearly within a period of
two years from the end of the assessment year 1954-55 and if
the amended provision applied the numberice would be a valid
numberice. it was however held by this companyrt that numberice was
 1   1964  53 i.t.r. 231.
number a valid numberice inasmuch as the right of the income
tax officer to reopen the assessment of the assessee under
the unmended provision became barred on 31st march 1956 and
the amended provision did number operate against him so as to
authorise the income tax officer to companymence proceedings for
reopening the assessment of the assessee in a case where
before the amended provision came into force the
proceedings had become barred under the unamended provision. at page 240 of the report shah j. speaking for the companyrt
observed as follows -
as we have already pointed out the right to
commence a proceeding for assessment against
the assessee an agent of a number-resident party
under the income tax act before it was
amended ended on march 31 1956. it is true
that under the amending act by section 18 of
the finance act 1956 authority was companyferred
upon the income tax officer to assess a person
as an agent of a foreign party under section
43 within two years from the end of th
e year of
assessment. but authority of the income tax
officer under the act before it was amended by
the finance act of 1956 having already companye
to an end the amending provision will number
assist him to companymence a proceeding even
though at the date when he issued the numberice
it is within the period provided by that
amending act. this will be so
numberwithstanding the fact that there has been
numberdeterminable point of time between the
expiry of the time provided under the old act
and the companymencement of the amending act. the legislature has given to section 18 of the
finance act 1956 only a limited
retrospective operation i.e. up to april 1
1956 only. that provision must be read
subject to the rule that in the absence of an
express provision or clear implication the
legislature does number intend to attribute to
the amending provision a greater retrospective
than is expressly mentioned number to authorise
the income tax officer to companymence proceedings
which before the new act came into force had
by the expiry of the period provided become
barred. in our opinion the principle of this decision applies in
the present case and it must be held that on a proper
construction of section 297 2  d  ii  of the new act the
income tax officer cannumber issue a numberice under section 148
in order to reopen the assessment of an assessee in a ease
where the right to reopen the assessment was barred under
the old act at the. date when the new act came into force.