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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: M.V. VALLIAPPAN & ORS.

DATE OF JUDGMENT:       29/04/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

Shah, J.

     These  appeals by special leave are filed against  the judgments  and  orders  passed by the High Court  of  Madras dated  13.1.1988  in Writ Petition Nos.992 and 993 of  1981, 162  & 6036 of 1983, 904-905, 994, 995, 5430, 6162 and  9283 of  1984, by the High Court of Karnataka dated 9.11.1993  in Writ  Petition  Nos.   12312  to 12317  of  1987  and  dated 25.11.1992  in W.P.  No.23708 of 1992, and by the High Court of  Gujarat  dated 29.6.1993 in Income Tax Application  Nos. 164  and 165 of 1993.  By a common judgment and order passed in various writ petitions filed before the Madras High Court (M.V.   Valliappan & Ors.  Vs.  Income-Tax Officer &  Others 170  ITR 238), the High Court struck down the provisions  of Section  171(9) of the Income Tax Act, 1961 as violative  of Article  14 of the Constitution of India and that it suffers from the vice of legislative competence.  In the High Court, number  of  writ  petitions were filed  involving  questions relating  to  the validity, scope and interpretation of  the provisions  of  Section 171 (9).  For our purpose, it  would suffice to mention facts of Writ Petition No.994 of 1984 for deciding  the  question involved in these appeals.   In  the said petition, it was the case of the petitioner that he was a  Karta of a Hindu undivided family consisting of  himself, his  wife,  his  minor son and minor daughter.  It  was  his contention  that the Hindu undivided family was a partner in a  partnership  firm in which its funds were  invested.   On 13th  April,  1979,  a partial partition of  certain  assets belonging  to  the Hindu undivided family was effected  with effect  from that date by executing a deed of partition.  An application under Section 171(2) of the Income Tax Act, 1961 for  recognition  of the said partial partition came  to  be filed before the Income Tax Officer.  The Income Tax Officer passed  an  order dated 28th December, 1979 recognizing  the partial  partition.   Thereafter  for  the  assessment  year 1980-81,  a  return  was submitted on behalf  of  the  Hindu undivided family on April 12, 1980 which did not include the income  from  the property which was the subject  matter  of partial  partition.  The income derived from the assets that were  the subject matter of partial partition were  declared by  the respective individuals in their respective  returns. In   accordance  with  the   said  return,  assessment   was finalised.   Similarly, wealth tax return for the assessment year  1980-81 was also filed and accepted by the Income  Tax

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Officer.   Thereafter,  a notice dated March 4,  1983  under Section  148  of  the  Act was received  by  the  petitioner stating that income of the petitioner had escaped assessment and  the Income Tax Officer proposed to reopen the completed assessment  for the year 1980-81.  The assessee objected  to the  re- opening of the assessment on the ground that  order under  Section 171 of the Act recognising the partition  not having  been cancelled or revoked, continued to be effective and,  thereafter, no income from the partitioned  properties could  be  assessed  in  the hands of  the  Hindu  undivided family.   These  objections were rejected by the I.T.O.   by order dated 30th November, 1983.  Fresh assessment order for H.U.F.   was  made by including the income relating  to  the assets  which were partially partitioned and allotted to the individual  members  of  the Hindu undivided  family.   That re-assessment  order was challenged by filing writ petition. Facts  in the other writ petitions were also similar to  the facts as stated above.  The High Court after considering the various contentions and decisions relied upon by the parties arrived at and summarised its conclusion as under:  -

     (1)  Section  171(9)  of the  Income-tax  Act,  1951, cannot  be  sustained on the ground that it is a measure  to counteract the tendency to tax avoidance and it suffers from the vice of legislative incompetence.

     (2)  Section  171(9) of the Income-Tax Act,  1961,  is also  void  on the ground of violation of Article 14 of  the Constitution of India.

     (3)  Section  171(9)  of  the  Income-Tax  Act,  1961, entrenches  upon the charging provisions in Section 4 of the Income-Tax  Act,  1961, and purports to bring to charge  the income  which does not belong to the Hindu undivided  family to  be assessed in the hands of the Hindu undivided  family. The provision thus enlarges the scope of sections 4 and 5 of the Act and is, therefore, invalid.

     (4) Section 171(9) of the Income-Tax Act, 1961 has the effect of fastening a penal liability on the Hindu undivided family when in fact, in the case of a partial partition, the liability for concealment of income is that of the member of the  Hindu undivided family who earned the income in his own right and not of the Hindu undivided family.

     (5)  The  effect of section 171(9) of  the  Income-Tax Act,  1961  is  that  it virtually negatives  the  right  of partition  under  the personal law only in certain cases  of partition  after  December 31, 1978, and there is  no  valid basis of justification for treating Hindu undivided families separately  in  a hostile manner with reference to the  date December  31,  1978,  the choice of the date  being  clearly arbitrary.

     (6)  The operation of Section 171(9) of the Income-Tax Act,  1961,  is  restricted only to cases where a  claim  in respect  of  a  partial partition which  is  effected  after December  31,  1978,  is  made for the  first  time  in  the assessment year 1980-81.

     (7) The provisions of Section 171(9) of the Income Tax Act,  1961,  will not fasten any liability in respect  of  a partial  partition which has already been recognised in  the assessment year 1979-80 and a finding recorded in respect of such  a  claim for the assessment year 1979-80 will  not  be

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affected  by  the  invalidating provision in clause  (a)  of sub-Section (9) of Section 171 of the Act.

     In  Civil  Appeal  Nos.12590/95 & 5743-48 of  1995,  a similar  view  has  been taken by the Karnataka  High  Court following  the  decision rendered by the Madras High  Court. The  Karnataka  High  Court has held Section 171(9)  of  the Income  Tax Act, 1961 as unconstitutional and also  declared Section   20A  of  the  Wealth   Tax  Act,  1957  which   is substantially  similar  to Section 171(9) of the Income  Tax Act   as  void  being  violative  of  Article  14   of   the Constitution.   The  Gujarat  High Court  has  rejected  the Income  Tax  Applications  filed before it for  raising  and referring the following question:-

     whether  on the facts and in the circumstances of the case  and  in law, the Tribunal was right in coming  to  the conclusion  that  share  income  from the firm  to  the  two smaller  HUFs  cannot be clubbed in the hands of the  bigger HUFs.

     In  the said cases also, I.T.O.  refused to  recognise partial  partition  in  view of the  provisions  of  Section 171(9)  of the Act and added the share income of two smaller HUFs  in  the hands of the assessee bigger HUF.  Since  the question  involved  in all these cases is of  constitutional validity  of Section 171(9) of the Income Tax Act, 1961, all these matters were directed to be placed together before the Constitution  Bench.   Hence, these appeals are disposed  of this  common judgment and order.  Learned counsel  appearing on  behalf  of  the  appellant-Revenue  submitted  that  the findings  given  by the High Court are, on the face  of  it, erroneous.  He contended that there is no reason for holding that  Section  171(9) suffers from the vice  of  legislative incompetence  or  that the prescribed cut off date  as  31st December,   1978  is  violative  of   Article  14   of   the Constitution of India.  The cut off date is prescribed after taking  into consideration the assessment year and is  given effect  from the assessment year 1980-81.  It is his further submission  that  those who have partially  partitioned  HUF properties  prior to cut off date and those who have done it subsequently  are  both distinct and different classes.   As against  this, learned Counsel for the respondents submitted that  the  reasons  recorded by the High Court  for  holding sub-section   (9)  to  be  invalid  do  not  call  for   any interference.  Before appreciating the contentions raised by the learned Counsel for the parties, it will be necessary to refer to the relevant part of Section 171of the Act which is as under:

     171(1)  A Hindu family hitherto assessed as undivided shall  be deemed for the purposes of this Act to continue to be a Hindu undivided family, except where and in so far as a finding  of  partition has been given under this section  in respect of the Hindu undivided family.

     (2)  Where, at the time of making an assessment  under Section 143 or Section 144, it is claimed by or on behalf of any  member  of  Hindu family assessed as undivided  that  a partition, where total or partial, has taken place among the members  of such family, the (Assessing) Officer shall  make an  inquiry thereinto after giving notice of the inquiry  to all the members of the family.

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     (3)  On the completion of the inquiry, the (Assessing) Officer  shall record a finding as to whether there has been a  total or partial partition of the joint family  property, and,  if there has been such a partition, the date on  which it has taken place.

     (4) to (8) XX XX XX

     (9)   Notwithstanding   anything   contained  in   the foregoing  provisions  of  this  section,  where  a  partial partition  has  taken place after the 31st day of  December, 1978,  among  the other members of a Hindu undivided  family hitherto assessed as undivided, --

     (a)  no  claim that such partial partition  has  taken place  shall  be inquired into under sub-Section (2) and  no finding  shall  be recorded under sub-Section (3) that  such partial  partition had taken place and any finding  recorded under sub-Section (3) to that effect whether before or after the  18th day of June, 1980, being the date of  introduction of the Finance (No.2) Bill, 1980, shall be null and void;

     (b)  Such  family  shall continue to be liable  to  be assessed  under this Act as if no such partial partition had taken place;

     (c)  Each  member or group of members of  such  family immediately  before  such partial partition and  the  family shall  be jointly and severally liable for any tax, penalty, interest,  fine  or other sum payable under this Act by  the family  in  respect of any period, whether before  or  after such partial partition;

     (d)  The  several liability of any member or group  of members aforesaid shall be computed according to the portion of  the joint family property allotted to him or it at  such partial partition,

     And   the   provisions  of   this  Act   shall   apply accordingly.

     Explanation - --------

     From  the aforesaid section, it is clear that for  the purposes  of income tax, the concept of partial partition of HUF  was recognised, but is done away with by the  amendment which  specifically provides that where a partial  partition has  taken place after 31st December, 1978 no claim of  such partial  partition having taken place shall be inquired into under sub-Section (2) and no finding shall be recorded under sub-Section (3) that such partial partition has taken place. If  any  such  finding  is recorded  under  sub-Section  (3) whether  before  or after 18th June, 1980 being the date  of introduction  of Finance Bill (No.  2) 1980, the same  shall be  null and void.  The effect of the aforesaid  sub-Section is  that for the purposes of income- tax partial  partitions taking  place  on or after 1-1-79 are not to be  recognised. If  a  partial partition has taken place after the  cut  off date no inquiry as contemplated under sub-Section (2) by the Income-Tax  Officer  shall be held.  Even if the inquiry  is completed  and finding is given, it would be treated as null and  void.  In this view of the matter, contention raised in

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some  of  the  petitions  by the  learned  Counsel  for  the respondents that partial partition took place on 13th April, 1979  and that in the assessment year it was recognised  and benefit  was  given to the assessee, has no significance  in view  of crystal clear language used in the sub-section that partial partition taking place after the cut off date is not to  be  inquired into and if inquired the findings would  be null  and  void.  Such a family is to be assessed under  the Act  as  if no partial partition has taken place.  The  next question  is whether the amendment to the aforesaid  section can  be  said  to  be  in any  way  beyond  the  legislative competence.  In our view, it is difficult to comprehend that the  said  amendment  can be termed  as  beyond  legislative competence.   The Parliament has the authority to delete  or amend  any provision of the Income Tax Act and it cannot  be said   that  it  is   beyond  legislative  competence.   The legislative  competence is to be decided on the basis of the Constitution  that empowers the Legislature to levy taxes on income.   The  relevant  item 82 of List I  of  the  Seventh Schedule  to  the  Constitution empowers the  Parliament  to enact  the  legislation  for imposition of taxes  on  income other  than  agricultural income.  Further, the  concept  of partial partition of HUF was not recognised under the Income Tax  Act, 1922 and was recognised only under the Income  Tax Act,  1961.  All that is done by the amendment is to restore the status quo ante that prevailed prior to 1961 Act.  It is for  the  legislature to decide whether the  recognition  of partial  partition  introduced in the Income-Tax Act  should continue  or not.  If it considers that it has led to abuses or inconvenience, it is entitled to amend or delete.  As per the  object  and  reasons  of   the  Amending  Act,  it  was introduced  because  multiple Hindu undivided families  were created  by effecting partial partitions as regards  persons constituting  the joint family or as regards the  properties belonging to the joint family or both, which resulted in tax reduction  or  evasion  and  with a  view  to  curbing  this creation  of  multiple  Hindu undivided families  by  making partial  partitions, it was proposed to de-recognise partial partitions of HUF effected after 31st December, 1978 for the tax purposes.  By having multiple partial partitions qua the properties  or the members, it is possible to manipulate the affairs  of  the HUF for reduction of tax liability  and  to prevent such manipulation, sub-section (9) is added.  Hence, it  would be difficult to hold that addition of  sub-Section 171(9) is beyond the legislative competence.  Further in the case   of   Balaji   vs.    Income  Tax   Officer,   Special Investigation  Circle,  Akola and Others (1961) 63 ITR  393, similar  contention was considered by this Court and it  was held  that  it is settled law that entries in the Lists  are not  powers but are only fields of legislation and Entry  82 can  sustain  law made to prevent the evasion of  tax.   The Court  dealt  with the validity of Section 16 (3) (a) (i)  & (ii)  of  the Income Tax Act, 1922 which provided  that  for computing the total income of any individual for the purpose of  assessment,  the  shares  in the  profits  of  the  firm received by the wife and/or minor children shall be included in  the total income of the individual if he is the  partner of  the said firm.  The Court held that sub-section  3(a)(i) and  (ii) was enacted for preventing evasion of tax and  was well  within the competence of Federal Legislature.  On  the question  of  legislative competence, the Court referred  to earlier  decision  in  the case of Sardar Baldev  Singh  Vs. C.I.T.   (1960) 40 ITR 605 and held as under:- So entry  54 (Government  of India Act, 1935) should be read not only  as authorising  the imposition of a tax but also as authorising

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an  enactment  which prevents the tax imposed being  evaded. If  it were not to be so read then the admitted power to tax a  person on his own income might often be made  infructuous by ingenious contrivances.

     The  decision holds that the said entry can sustain  a law made to prevent the evasion of tax.

     The   Court   also   dealt   with  the   question   of constitutional  validity  on the ground of violation of  the doctrine  of equality and negatived the contention that  the legislature ought to have classified genuine and non genuine cases of partnership by holding that demarcating a group any further,  by  sub classification as genuine and  non-genuine partnerships,  might  defeat  the purpose of the  Act.   The Court  observed as under:  - This mode of taxation may be a little  hard on a husband or a father in the case of genuine partnership with wife or minor children, but that is offset, to  a  large  extent, by the beneficient results  that  flow therefrom  to the public, namely, the prevention of  evasion of  income-tax, and also by the fact that, by and large, the additional  payment of tax made on the income of the wife or the  minor children will ultimately be borne by them in  the final accounting between them.

     Next ground is with regard to violation of Article 14. The  amendment  is brought with effect from 1st April,  1980 and  is to apply in relation to assessment years 1980-81 and thereafter.   It  is  true  that two  distinct  classes  are created  one of families having partial partition which has taken  place prior to the cut off date and other of  partial partition  taking  place  after the cut off  date.   Benefit which  is conferred upon those assessees who have  partially partitioned  their property prior to the cut off date is not withdrawn  and  others who partitioned their property  after the  cut  off  date would not get the same, but  that  would hardly  be  a ground for holding it as violative of  Article 14.   It  is settled law that differentiation is not  always discriminatory.   If there is a rational nexus on the  basis of  which  differentiation  has been made  with  the  object sought  to  be achieved by particular provision,  then  such differentiation  is not discriminatory and does not  violate the  principles  of  Article 14 of the  Constitution.   This principle  is  too  well- settled now to  be  reiterated  by reference  to  cases.  Further, whether the same  result  or better  result could have been achieved and better basis  of differentiation could have been evolved is within the domain of  Legislature  and  must be left to its  wisdom.   In  the present    case,   there   is    intelligible   basis    for differentiation  and  the classification is having  rational nexus  of achieving the object of preventing the creation of further  multiple Hindu undivided families for reduction  of tax  liabilities.  Further, for the validity of the Section, it  is  not  necessary for the legislature to  withdraw  the benefit  which is already conferred.  Secondly, cut off date of  31st December, 1978 cannot be said to be arbitrary.  The Amending  Bill  was  introduced in June, 1980 and  is  given effect  to from the assessment year 1980-81.  It is  settled law  that the choice of a date as a basis for classification cannot  always be dubbed as arbitrary even if no  particular reason  is forthcoming for the choice unless it is shown  to be  capricious  or  whimsical in the  circumstances;   while fixing  a  line,  a  point  is necessary  and  there  is  no mathematical  or  logical way of fixing it;  Precisely,  the decision of the Legislature or its delegate must be accepted

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unless  it  is  very  wide off the  reasonable  mark.   [Re: University  Grants Commission, etc.  Vs.  Sadhana  Chaudhary and  Others,  etc.   (1996) 10 S.C.C.   536].   The  learned Counsel  for  the Respondent was not in a position to  point out  any ground for holding that the said date is capricious or whimsical in the circumstances of the case.  In this view of  the  matter,  the finding given by the High  Court  that there  is no valid basis of justification for treating Hindu undivided  family  separately  in  a  hostile  manner   with reference  to the date, i.e., 31st December, 1978, is on the face  of  it erroneous.  The next reason given by  the  High Court  is that it entrenches upon the charging provisions in Section  4 & 5 of the Income Tax Act and purports to  charge the  income  which does not belong to HUF to be assessed  in the hands of HUF.  Hence, it enlarges the scope of Section 4 &  5 of the Act.  In our view, this reason is also devoid of any substance because charging Sections 4 & 5 are to be read with  the definition of the word person given in the  Act, that  is,  the tax is to be charged in respect of the  total income  of the previous year of every person.  Word person is  given  the meaning in Section 2 (31) which,  inter-alia, includes  a  Hindu  undivided  family.  It is  open  to  the Legislature  to give different meaning to the word  person for  the purpose of the Act which may or may not include HUF or  such  other legal entities.  In such a situation, it  is open  to the HUF to take the benefit of the Act as available or to partition the HUF as a whole.  It is to be stated that even prior to the amendment, all partial partitions were not recognised  under the Act.  Partial partition which was only in accordance with the Explanation was recognised.  Further, prior  to  Income  Tax Act, 1961, there was no  question  of recognising  partial  partition and the  relevant  provision under  the  Income  Tax Act, 1922 was  Section  25A.   After considering the various decisions, this Court in the case of M/s.   Kalloomal Tapeswari Prasad (HUF), Kanpur Vs.  C.I.T., Kanpur  (1982)  133 I.T.R.  690 held that the  substance  of decisions  in Kalwa Devadattam Vs.  Union of India (1963) 49 ITR  (SC) 165, in Add.  ITO Vs.  A.  Thimmayya (1965) 55 ITR 666  (SC),  and  in  Joint Family of  Udayan  Chinubhai  Vs. C.I.T.   (1967) 63 ITR 416 (SC) was that under Section  25-A of  the  1922  Act a Hindu undivided family which  had  been assessed  to tax could be treated as undivided and subjected to  tax  under  the Act in that status unless and  until  an order  was made under Section 25-A (I);  if in the course of the  assessment  proceedings  it is claimed by  any  of  the members  of  the Hindu undivided family that there has  been total partition of the family property resulting in physical division  thereof  as  it  was  capable  of,  the  assessing authority  should  hold an inquiry and decide whether  there had  been  such a partition or not;  If he held that such  a partition  had  taken  place, he should proceed to  make  an assessment  of  the  total  income of the family  as  if  no partition  had taken place and then proceed to apportion the liability  as stated in Section 25-A amongst the  individual members of the family.  If no claim was made or if the claim where  it  was made was disallowed after inquiry, the  Hindu undivided family would continue to be liable to the assessed as  such.   This was the legal position under the 1922  Act. The  Court  further  held as under:  - Hindu law  does  not require  that the property must in every case be partitioned by metes and bounds or physically into different portions to complete  a partition.  Disruption of status can be  brought about  by any of the modes referred to above and it is  open to  the  parties  to  enjoy   their  share  of  property  as tenants-in-common  in  any manner known to law according  to

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their  desire.   But the income tax law  introduces  certain conditions  of its own to give effect to the partition under Section 171 of the Act"

     The  Court  also  held:  If a  transaction  does  not satisfy  the  above  additional  conditions,  it  cannot  be treated as a partition under the Act even though under Hindu law  there  has  been a partition  total or  partial.   The consequence  will  be  that  the undivided  family  will  be continued  to  be assessed as such by reason of  sub-Section (1) of Section 171.

     From  the aforesaid decisions, it is clear that  prior to   Income  tax  Act,  1961,   there  was  no  question  of recognising  partial  partition.  Even with regard to  total partition,  it  was required to satisfy all  the  conditions prescribed  in  Section 25A and an order was required to  be passed  for that purpose under Section 25A(1).  If the claim of  partition  was  disallowed after inquiry,  the  HUF  was liable  to be assessed as such.  After the new Act,  partial partition  was  not  recognised   unless  it  satisfied  the conditions  laid  down in the Explanation.   Therefore,  the contention  that  sub-Section (9) entrenches  upon  charging provision in Sections 4 & 5 of the Act is without any basis. The  aforesaid case of Kalloomal was relied upon in the case of  I.T.O.  Vs.  N.K.  Sarada Thampatty, (1991) 187 ITR 696, and  the  Court observed that in considering the  factum  of partition   for  the  purpose  of   amendment,  it  is   not permissible  to  ignore  the  special  meaning  assigned  to partition under the Explanation to Section 171 even if the partition  is to be effected by a decree of the Court.   The Legislature  has  assigned  special   meaning  to  the  word Partition  under  the Explanation which is different  from general  principles of Hindu law and it contains the deeming provision  under which partition of the property of the  HUF could be accepted.  In this view of the matter, it cannot be held  that by addition of sub-Section (9), scope of Sections 4  and 5 of the Act is enlarged and, therefore, it is beyond legislative  competence.   The  learned   Counsel  for   the respondent,  inter  alia,  submitted  that:  -  (1)  Such  a drastic  and sweeping provision was arbitrary and  excessive and was not at all necessary to prevent the abuse of partial partition  as  a tax avoidance tool.  (2) Partial  partition can  be  for absolute, genuine and bona fide need and if  it was not genuine or for bona fide need as per Explanation, it was  not  recognised.  Therefore, there was no necessity  of amending  the  Act.  (3) Once, there is a partial  partition and  if  it is not recognised, the income received from  the partitioned assets would be taxable in the hands of HUF at a significantly higher rate of tax than the rate applicable to the  separated member.  (4) Under the provisions of the Act, HUF can be liable to pay the tax without having control over the  assets  which  are partitioned.  (5)  Considering  this hardship  and inequities resulting from Section 171(9),  the Court  has  rightly held the provisions to be arbitrary  and violative of Article 14 of the Constitution.

     In our view, the aforesaid submissions are without any substance  and  similar  contentions   are  dealt  with  and rejected  by  this  Court  in  the  cases  mentioned  above. [Sardar  Baldev  Singh  40  ITR 605 and Balaji  63  ITR  393 (supra)].   It is for the Legislature to recognise or not to recognise  partial partition of HUF property for the purpose of  levy  and  collection  of  tax;   it  is  also  for  the legislature  to  decide whether only non bona  fide  partial

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partition  undertaken for reducing the tax liability  should not be recognised or not to recognise all partial partitions of  HUF  properties.  Further, consideration of hardship  is totally  irrelevant for deciding the question of legislative competence.  In the case of taxation, it is settled law that hardship  or  equity  has  no role to  play  in  determining eligibility  to  tax  and  it  is  for  the  legislature  to determine  the same.  Lastly, once the partial partition  is not recognized, tax is to be calculated as if the assets are held  by  the HUF.  Hence, the question whether the  HUF  is required  to  recover  tax  from  the  person  to  whom  the properties are allotted, is not required to be considered by the  Taxing  authority as for the purpose of income tax  the properties  belong  to  the  HUF.   If  the  HUF  finds  any hardship, it is for the members of HUF to have the partition of  the  entire  estate and not to have  partial  partition. Therefore,  there is no substance in the contentions  raised by the learned Counsel for the Respondent.

     In  this  view  of the matter, aforesaid  appeals  are allowed.  The judgments and orders holding Section 171(9) of the  Income Tax Act, 1961 and Section 20A of the Wealth  Tax Act,  1957  as unconstitutional are quashed and  set  aside. The  writ  petitions filed by the respondents  as  mentioned above  before the Madras High Court and Karnataka High Court challenging the validity of Section 171(9) of the Income Tax Act and for consequential reliefs are dismissed.  The orders of  the  Gujarat  High Court  rejecting  applications  under Section  256(2)  of  the Income Tax Act, 1961 are  also  set aside  and  in  the said matters, the Income  Tax  Appellate Tribunal,  Ahmedabad  shall refer the questions to the  High Court  for determination.  Ordered accordingly.  No order as to costs.