K. M. VISWANATHA PILLAI

K. M. SBANMUGHAM PILLAI

November 25, 1969

[S. M. SJKRI AND K. S. HEGDE, JJ.J Motor Vehicles Act (4 of 1939), ss. 49(1) and 60(1) (c)-Persons owning bwes benami-Whether bar for obtaining permit.

The appellant was the owner of 5 buses. The vehicles stood in the name of the respondent, appellant's benamidar, and tbe stage carriage permits were also obtained in the respondent's name. The appellant, who was running the buses, filed a suit claiming the buses along with their permits. It was decreed by the trial court, and the lower appellate court confirmed the decree in respect of 4 buses. The Higb Court, in further appeal, held that the appellant and the respondent together practised fraud in contravention of ss. 41(1) and 60(1)(c) of the Motor Vehicles Act, 1939 in as much as the respondent representing himself to be the owner falsely obtained the permits in his own name, and allowed the true owner, who had no permit to conduct the actual business and dismissed the suit in 1010.

In appeal this Court,

HELD : There is nothing in the Motor Vehicles Act, which expressly or by implication bars benami t'ransactions or persons owning buses benami and applying for pennits on that basis.

Section 42( 1) does not require that the owner himself should obtain the permit; it only requires the owner to see that the transport vehicles shall not be used except in accordance with the conditions of the permit.

The definition of 'permit' itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owner's name. The same inference follows from the definitions of 'private carrier' and 'public carrier'.

[899 HJ The amerided s. 60(1) (c) provides for one of the contingencies in which permit can be cancelled. According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency. It may or may not cancel it, even if the holder of the permit ceased to own the vehicles eovered by it.

But it is by no means necessary that cl. (c) should be applicable to the case of every permit holder. There may be permit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter.

[900 B-H] Veerappa Pillai v. Raman & Raman, [1952] S.C.R. 583, followed.

Khal/i/,.ul-Rahman Khan v. State Transport Appellate Tribunal, A.LR. 1963 All. 383, Gur Narayan v. Sheolal Singh.

(1919) 46 Cal. 566 (P.C.) and C.I.T. Gujarat v. Abdul Rahim & Co., 55

1.T.R. 651,

approved.

H Varadarcjulu Naidu v. Thavasi Nadar, (1963) 2 M.L.J. 20 and Chavali Venkataswami v. Chavali Kotayya, ( 1959) 2 and W.R. 4-07, disapproved.

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A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1453 of

1966.

Appeal from the judgment and decree dated September 14, 1965 of the Madras High Court in Second Appe&l No. 1394 of 1963.

A. K. Sen, R. M. Mehta and J. B. Dadachan; i, for the appellant.

R. Gopalakrishnan, for the respondent.

The Judgment of the Court was delivered by Sikri, J. This appeal by certificate granted by the High Court of Madras is directed against its judgment and decree modifying the decree passed by the District Judge.

The relevant facts for the determination of the points raised before us are as follows : The plaintiff, K. M. Viswanatha Pillai,

appellant before us and hereinafter referred to as the plaintiff, and K. M. Shanmµgham Pillai, respondent before us and hereinafter referred to as the defendant, were originally members of a Joint Hindu Family. On June 29, 1953, the six brothers who constituted the Joint Hindu Family entered into a partition of the properties belonging to the Joint Family, evidenced by a registered document Ex. A-35. A motor bus MDH 662 fell to the share of the plaintiff.

At the time of partition the permit was not in the name of the defendant and some proceedings for the transfer of the permit to his name were pending. Accordingly it was provided in the partition deed as follows :

"As soon as its route permit and registration etc. are transferred in the name of Shanmugam Pillai, he shall have the same transferred in the name of the 4th individual of us, Viswanatha Pillai." In September 1953, the permit was transferred in the name of the defendant.

In April 1954, the plaintiff purchased two more vehicles, namely, MDO 1106 and MDH 730, but the permits were obtained in the name of the defendant in whose name the vehicles were also actually acquired. As the defendant was going to Kuala Lumpur on business he executed a general power of attorney, Ex. A-55, in favour of the plaintiff. In this power of attorney the defendant admitted that the three buses above mentioned belonged to the plaintiff and were plying in his name as requested by the plaintiff. Two more buses seem to have been acquired since then.

The plaintiff's case in brief was that the defendant was carrying on business on his behalf as a benamidar. He accordingly prayed for a declaration that the five buses alongwith the stage

carriage permits belonged to him and that he .was ent!tled to run the same in terms of the power of attorney which was rrrevocable.

The defendant had joined with the plaintiff earlier in filg a joint application for transfer of permits before e Region~ Transport Authority.

The defendant, however, withdrew his consent and the application was rejected. The plaintiff, accordingly, seeks a mandatory injunction directing the defendant to execute necessary documents required to effectuate the transfer of the permits.

The suit was decreecl entirely by the Trial Court, but the District Judge confirmed the decree only with reference to four of the buses. With reference to Bus No. MDU 4069 the decree was set aside.

The High Court held that "the plaintiff and the defendant practised a fraud upon the authorities, conjointly, in contravention of the express provision of the Motor Vehicles Act. The benamidar of the vehicles, representing himself to be the owner, falsely obtained the permits in his name, and allowed the true owner, who had no permit, to conduct the actual business; there cannot be a more flagrant violation of the basic requirements of the Act, or of its scheme." The High Court, accordingly, felt that they could not possibly grant mandatory injunction compelling the defendant to co-operate in any further application for transfer, since that would, in effect, give recogIIition to the fraudulent contrivance and effectuate rights on the very basis of that contrivance. The High Court also agreed with the District Judge that the plaintiff could not get a declaration as far as bus No.

MDU 4069 was concerned.

The learned counsel for the appellant, Mr. A. K. Sen urges before us that no provision of the Motor Vehicles Act, 1939 (IV of 1939) hereinafter referred to as the Act has been contravened and that it is not necessary under the Act that a permit should be obtained only by the real owner of the bus.

The relevant statutory provisions may now be noticed, and they are as follows:

"The Motor Vehicles Act, 1939 Section 2.

(3) "contract carriage" means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum and from one point to another without stopping to pick up or set down along the line of route passengers not included in the contract; and includes a motor cab

., c

D •

F - G

notwithstanding that the passengers may pay separate fares."

(19) "owner" means, where the person in possession of a motor vehicle is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, the person in possession of the vehicle under that agreement."

(20) "permit" means the document issued by the commission or a State or Regional Transport Authority authorising the use of a transport vehicle as a contract carriage, or stage carriage, or authorising the owner as a private carrier or public carrier to use such vehicle."

(22) "private carrier" means an owner of a transport vehicle other than a public carrier who uses that vehicle solely for the carriage of goods which are his property or the carriage of which is necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section (2) of section 42.

(23) "public carrier" means an owner of a transport vehicle who transports or undertakes to transport goods, or any class of goods, for another person at any time and in any public place for hire or reward, whether in pursuance of the terms of a contract or agreement or otherwise, and includes any person, body, association or company engaged in the business of carrying the g'oods of persons associated with that person, body, association or company for the purpose of having their goods transported."

Section 42(1) on which the High Court has relied reads thus:

"42(1) No owner of a transport vehicle shall use or permit the use of the vehicle in any public place, save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or the Commission authorising the use of the vehicle in that place in the manner in which the vehicle is being used; . . . "

This section does not, in our view, on the language require that the owner himself should obtain the permit; it only requires the owner that the transport vehicle shall not be used except in accordance with the conditions of the permit.

The High Court would add the words "to .him" after the words "permit granted",

but in our view, there is no justification for inserting those wo; ds. The definition of the "permit" itself shows that all pennits need not be in .the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owner's name.

The same inference follows from the definitions of "private carrier" and "public carrier".

This Court came to the same conclusion in Veerappa Pillai v. Raman & Raman(').

Some reliance was placed on the amendments made ins. 60(1) (c). The section as amended reads:

"60 (1) The transport authority which granted a permit may cancel the permit or may suspend it for such period as it thinks fit-

(c) if the holder of the permit ceases to (own)( 2 ) the vehicle or vehicles covered by the permit, .... " There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal(") rightly gives the effect of the amendment. Srivastava, J., observed :

"A reference was, however, made to cl. (c) of sub-section (1) of Section 60 of the Act and on the basis of that clause it was urged that it assumed that the permit holder should be the owner of the vehicle.

That clause provides for one of the contingencies in which a permit can be cancelled. According to it, it is permissible for the Transport Authority to cancel a permit if the holder of it ceases to own the vehicle covered by the permit. It is only a permissive clause and the Transport Authority has only been given a discretion to cancel the permit in that contingency. It may or may not cancel it, even if the holder of the permit ceases to own the vehicle covered by it. But it is by no means necessary that cl. (c) should be applicable to the case of every permit holder. There may be pennit holders who own the vehicle covered by the permit and there may be permit holders who do not own the vehicle. This clause appears to apply only to the former case and not to the latter.

On its basis, therefore, it cannot be held to be a requirement of the

(1) [1952] S.C.R. 583.,

(2) Substituted by s. 54 of the Motor Vehicles (Amendment) Act, 1956 (100 of

1956) for "possess" (w.e.f. 16-2-1957).

(3) A.I.R. 1963 All. 383, 388.

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Act that in each case the person in whose favour a permit has been issued should necessarily be the owner of the vehicle covered by it."

We agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar(') thats. 42(1) contemplates that only an owner will have a permit is erroneous.

The decision of the Andhra High Court in Chavali V enkataswami v. Chavali Kotayya( 2 ) thats. 60(1) (c) of the Act envisages the grant of a permit to the owner alone must also be dissented from .

The learned counsel for the respondent says that at any rate the Act does not contemplate persons applying for permits benami.

In India benami transactions are recognised and not frowned upon. (see Gur Narayan v. Sheolal Singh) (3 ). In C.l.T.

Gujarat v. Abdul Rahim & Co. (') it was held by this Court that the registration of the partnership deed under s. 26A of the Indian Income Tax Act, 1922, could not be refused on the ground that K was the benamidar of V.

We see nothing in the Act which expressly or by implication bars benami transactions or persons owning buses benami and applying for permits on that basis.

In the result the appeal is allowed, the decree of the High Court set aside and the decree passed by the District Judge restored.

We may mention that Mr. Sen did not press the claim regarding the fifth bus, MDU 4069.

The appellant will have half costs in this Court. The parties will bear their own costs in the High Court.

Y.P .

(I) (1963) 2 M.L.J. 20.

(2) (1959) 2 Andh. W. R. 407.

(3) (1919) 46 Cal.566 (PC).

(4) 55 I.T.R. 651.

Appeal allowed.

K. M. VISWANATHA PILLAI

K. M. SBANMUGHAM PILLAI

November 25, 1969

K. S. HEGDE, JJ

Motor Vehicles Act

ss. 49(1) and 60(1)

ss. 41(1) and 60(1)(c)

Motor Vehicles Act, 1939

is nothing in the Motor Vehicles Act

Section 42( 1)

s. 60(1)

A. K. Sen

R. M. Mehta

J. B. Dadachan

R. Gopalakrishnan

Sikri

K. M. Viswanatha Pillai

K. M. Shanmµgham Pillai

June 29, 1953

Shanmugam Pillai

Viswanatha Pillai

Kuala

Lumpur

Motor Vehicles Act

Motor Vehicles Act, 1939

Section 2

section 42

Section 42(1)

High Court of Allahabad

Srivastava

Section 60

s. 54

Andhra High Court

India

s. 26A

Indian Income Tax Act, 1922

Sen


AMRfl'SAGAR GUPTA & ORS.

SUDESH BEHAR! LAL & ORS.

March 13, 1969

[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.] B

Code of Civil Procedure (Act 5 of 1908), s. 11-Res Judicata-Suit agrnnst mana11er of Joint Hindu family-No •flegation that he was being 10 sued--Coparceners not. parties-Decree if operates as res judicata "Qzainst coparceners.

A suit between J the father of appellants and B the father of respon dents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favo•1r of J and the decree was confirmed by"" this Court.

After various attempts by B and aftet his death by his sons, to defeat J's rights, one of B's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of whjclt B was the karta.

On the queition whether the decree in the earlier suit operated as res iudicatc.

HELD : It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was suing or was being sued as a manager.

It is sufficient if the manager was in fact suing or was being sued as representing the whole family.

A suit by or against the manager will be deemed to be one brought by or against him a~ representing the family if the circumM

stances show that be was the manager and the property involved in the suit was family property. (1004 H; 1005 AB]

In the present case, B must be deemed to have been sued in the pre vious suit as the karta of his famil}, because : (a) the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta; (b) there was no conflict of interest between B and hls sons and there was no allegation that B did not safeguard the family's interest while cimtesting the previous suit; and ( c) B did not claim in the earlier suit that the gift was to him in his individual capacity. [1004 A.C; 1005 CJ

Lalchand v. Sheogovind,

(1929) I.L.R. 8 Pat. 788, Ram Kishan v.

Ganga Ram, (1931) I.L.R. 12 Lah. 428, Prithipal v. Ramesh war, ( 1927) I.L.R. 2 Luck. 288, Surendranath v. Sambhunath, (1928) I.L.R. 55 Cal. 210, Mulgaurrd Co-operative Credit Sociny v. Shidlingappa Ishwarappa, I.L.R. (1941) Born. 682, Venkatanaraycna v. Somaraju, A.I.R. 1937 Mad.

610 (F.B) and Mani Sahoo v. Lokanath, A.I.R. 1950 Or. 140, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No 349 of 1966.

Appeal by special leave from the judgment and order dated December 17, 1963 of the Punjab High Court, Circuit Bench at Delhi in R.F.A. No. 164-C of 1963.

AMRITSAGAR v. SUDESH BEHAR! (Hegde, J.) 1003

S. Y. Gupte and A. N. Goyal. for the appellants.

C. B . .Agarwala, H. K. Puri and B. N. Kirpal, for respondent No. 1. -

The Judgment of the Court was delivered by

Hegde, J. The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No. 15 of 1943.

The trial court answered that question in the affirmative but the High Court has taken a contrary view.

Hence this appeal.

The facts of the case leading up to this appeal, briefly stated, are as follows :

Qne Krishen Gopal had lease-hold rights in the suit properties. After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.

Each one of them claimed that those properties had been gifted to him by Krishen Gopal.

As a re suit of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour.

In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal.

The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma.

The trial court dismissed the suit but in appeal the decree of the trial court was reversed and ' the suit was decreed as prayed for.

That decision was confirm-· ed by the High Court and thereafter by this Court in Civil Appeal No. 164 of 1953.

After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court.

Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways.

When everyone ol. those-efforts failed Rangi Lal Verma, the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint family consisting of Banwari Lal Verma and his sons.

This suit was dismissed for non-prosecution. It is only thereafter the present suit has been filed by one of the sons of Banwari Lal Verma claiming partition in the smt properties on the allegation that the same had been gifted by Krishcn Gopal to his joint family.

SUPREME COURT .REPORTS [1969] 3 S.C.ll.

The gift put torward by the plaintiff is said to have been made in 1928.

Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time.

It was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit.

Further it is not the case of the respondents that there was any confiict of interest between Banwari Lal Verma and his sons.

The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice. The effon is one and continuous.

The suit from which this appeal has arisen is a clear abuse of judicial process. It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res iiulicata in the present case.

In the Civil Suit No. 15 of 1943, there was no room for controversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family.

Therein the controversy was whether the suit properties had been gifted to J awala Prashad or Banwari Lal Verma.

As seen earlier Banwari Lal Yerma pleaded that they had been gifted in his favour.

He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to hiµi as the Karta of the family or in his individual capacity.

The properties that were in dispute in the former suit as well as in the present suit are identical properties.

It cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit. That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it. If his claim in that suit is understood to have been made on behalf of his' family then he must be deemed to have been sued therein as the Karta of his family.

It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit.

That being so we fail to appreciate the conclusion of the High Coun that the decision in the previous suit does not operate as res judicata in the present suit.

It is not necessary, in order that a decree against the manager may operate as res-judicata against coparceners who were not parties to the suit that the plaint or written statement should stllte in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued .as representing the whole family, sec La/chand v.

AMRITSAGAR v. SUDESH BEHAR! (Heide, /.) 1005

Sheogovind('); Ram Kishan v.

Ganga Ram('); Prithipal v.

Rameshwar('); Surendranath v. Sambhunath(').

The suit by or against the manager will deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgaund Co-operative Credit Society v. Shidlingappa lshwarappa('). See also Ven; kakanarayana v. Somaraju('). It is not not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager.

A Karta can represent the family effectively in proceeding though he is not named as such, see Mani Sahoo v. Lokanath(1 ).

For the reasons mentioned above this appeal is allowed and the judgment and decree of the High Court is set aside and that of the trial court restored.

The respondent shall pay the costs of the appellants in all the courts.

V.P.S.

Appeal allowtd.

(1) (1929)1.L.R.8, Pat. 788. (2)(1931)1.L.R.12. Loh .• 28.

(3) (1927) l.L.R. 2, LQck. 288.

(4) (1928) I.LR. 55, Cal. 210.

(5) [1941] I.L.R. Born. 682,

(6) A.I.R, \937 Mad. 610 (F.B.),

(7) A.I.R, 19500r.140.

SUDESH BEHAR! LAL & ORS.

March 13, 1969

S. M. SIKRI

R. S. BACHAWAT

K. S. HEGDE, JJ.

Code of Civil Procedure

s. 11

CIVIL APPELLATE JURISDICTION

S. Y. Gupte

A. N. Goyal

C. B . .Agarwala

H. K. Puri

B. N. Kirpal

Hegde

Qne Krishen Gopal

Krishen Gopal

Jawala Prashad

Banwari Lal Verma

January 20, 1943

Rangi Lal Verma

Krishcn Gopal

SUPREME COURT .REPORTS [1969] 3 S.C.ll

Rangi Lal

February 26, 1969

J awala Prashad

Banwari Lal Yerma

Sheogovind


STATE OF UTIAR PRADESH & ORS.

SHAH MOHAMMAD & ANR.

March 13, 1969

[J. C. SHAH AND A. N. GROVBR, JJ.J

Indian Citizenship Act 57 of )955, s. 9 and Citizenship Rules, 1956, r. 30--ApplioabUity of provisions to suit pending when Act cc; me into fotce.

Respondent No. I was born in undivided India on July 3, 1934.

He went to Pakistan in October 1950.

In 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953.

After the expiry of his pe'riod of stay he sought permanent settlement in India. On May 6. J 955 he filed a suit claiming that he was a minor when he went on a trip to Pakistan and had not ceased to be an Indian citizen.

He sought a permanent injunction restraining the Union of India and other authorities from deporting him.

The Munsif who tried the suit held that respondent No. I had ceased to _he an Indian citizen, and dismissed the suit.

The Distric~ Judge in first appeal held that being a minor whose fathe'.r was in Jndia respondent no. 1 could not by leaving for Pakistan. lose his Indian nationality. In second appeal the High Court of Allahabad remanded the case to the. first appellate court to determine the question whether by having spent one year in Pakistan after attainin&

majority respondent no. I had acquired the citizenship of Pakistan. The High Court rejected the contention on behalf of the State that in view of s. 9(2) of the Indian Citizenship Act 1955 which came into force on December 30, 1955 and Rule 30 of the Citizenship Rules made under the Act. the question whether respondent no. 1 was a citizen of India or not could only be decided by the Central Government.

In taking this view the High Court relied on the decision in Abida Khatoon's dase in which a single Judge of that court had held that s. 9 of the Citizenship Act 1955 was not retrospective and could not take away the vested right of a citizen who had already filed a suit to have his claim for citizenship decided by a court. The first appellate court gave afte'r remand n finding favourable to respondent no. 1 and on receipt of this finding the High Court dismissed the State's appeal.

The State then appealed to this Court. The questions that tell for consideration were: (i) whether s. 9 of the Act would apply to a suit pending on the date when the Act came into force:

(ii) whether in view of the fact that the procedure established bv law before the dommencement of the Act allowed the question as to the acquisition of the citizenshio of anothe'r cOuntry to be determined by courts, there was hv giving retrospective operation to s. 9, a violation of the guarantee of personal liberty under Art. 21.

HELD: (i) The language of sub-s. (!) of s. 9 is clear and unequivoczi.I and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between. Janary 26. 19~0 and its commencement or where he acquires such nationahtv after tts commencement. The \Vords "or has at anv time btween te 26th Ja.nary 1950 and the commencement of the Aqt. voluntarily acqu1.red the citizenship of a.Dotber country" would become almost redndant if <?nly prespective operation is given to s. 9 (I ) of the Act.

Th18 accol'dmg to the settled rules of interpretation cannot be done, [1010 F-Gl

U.P. STATE v. SHAH MOHAMMAD 1007

(ii l. The Act has been enacted under the powers of the Parliament preserved by Art. 11 in express terms and a law made by Parliament cannot, as held in Jzhar Ahmed's case be impeached on the ground that it is inconsistent with the provisions contained in other Articles in Part II of the Constitution.

The Parliament had also legislative competenoe under Entry 17. List I of Seventh Schedule. It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by r. 30. [1011 B-DJ

The cases that would ordinarily arise about loss of Indian citizemhip by acquisition of forei'!ll citizenship would be of three kinds : (I) Indian citizem who voluntarily acquired citizenshio of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the ditizemhip of another State or ountry between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act, and (3) Indian Citizens who voluntai'ily acauired forei!!II citizeiuhip after the date of commencement of the Act i.e. December 30, 1955. Id regards the first categorv they were dealt with by Art. 9 of the Constitution. The second and third categories would be covered by the provisions of s. 9 of the Act. Therefore, if' a question arises as to whether when and how an Indian citizen has acquired citizenship of another country that has to be determined bv the Central Government by virtue of the provisions of sub-s. (2) of s. 9 read with r. 30 of the Citizenshio Rules. In view of the amplitude of the language employed in s. 9 which takes in persons mentioned in category (2) mentioned above, the entire argument which prevailed with the Allahabad Hi•h Court in Abida Khatoon's case can have no substance. [1011 D-H. 1012 CJ

Jzhar Ahmad Khan v. Union of India, [1962) Su!Jp. 3 S.C.R. 235. 244 245,, Akbm- Khv~ Alam Khan & Anr. v. Union of India, [1962) I S.C.R 779 and The Government of Andhra Pradesh v. Syed Mohd. Khan, [1962) Supp. 3 S.C.R. 788, referred to.

Abida Khatoon & Anr. v. State of U.l'. & Ors. A.I.R. !963 All 260, disapproved.

(iii) The contention that retrospective operation of s. 9 would contravene Art. 21 of the Constitution could not be accepted. If the Parliament was competent under Art .. t 1 which is a constitutional orovision read with the relevant entry in List I to legislate about cases of persons

belonniz to categories 2 and 3 re'ferred to earlier it could certainly enact a legislation in exercise of its sovcreii; m power which laid down a procedure different from the one which obtained before. The new o'rocedure would itself become thl'!: "procedure establi'\hed by law'' within the mean~

ing of Art. 21 of the Constitution. [1012 E-GJ

The Hieb Court was therefore wronJ?; in the ore'\ent case in ca1ting for a decision of the lower appellate court on the issue of the plaintiff having acquired or not the citizenshin of Pakistan between July 3. 1952 and the date of his return to India. [Hieb Court accordinglv directed to have Question deterrninetl hy CP.ntral Government and thereafter dispose of appeal finally).

[1013 B-C]

CrviL APPELLATE JURISDICTION: Civil Appeal No. 347 of 1966.

Apoeal bv soeciol leave from the iud!'Tllent and order datecl December 11. 1963 of the Allahabad High C'ourt in Second Appeal No. 3809 of 1958. -

1008 SUPRl!ME COURT RllPORTS

(1969] 3 S.C.R.

C. B. Agarwala, 0. P. Rana and Ravindra Rana, for the appellants.

Denial Latifi and M. l. Khowaja, for respondent No. 1.

The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Allahabad High Court in which the principal question for determination is whether s. 9 of the Indian Citizenship Act, 1955, hereinafter called the "Act", which came into force on December 30, 1955, would be applicable to a suit which was pending on that date. -

. Respondent No. 1 was born on July 3, 1934.

He went to Pakistan in October 1950.

In March 1953 he obtained a visa from the Indian High Commission in Pakistan for coming to India. He came to India on July 22. 1953. On July 20, 1954 the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India.

He, however. filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on Februarv 10, 1955 and respondent No. 1 was directed to file a suit.

He instituted a suit on May 6, 1955.

He claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by two muslim youths to accompany them on a trip to Pakistan.

He went there without any intention to settle there permanently.

Later on he made efforts to return but due to certain restrictions he was unsuccessful.

He had no alternative but to obtain a passoort from the Pakistan authorities in order to come to India.

He had thus never changed his nationality and continued to remain a citizen of India.

He sought a nermanent injunction restraining the Union of India, the State of U.P., District Magistrate, Kanpur and the Suoerintendent of Police. Kanpur. who were impleaded as defendants from deporting him.

The suit was contested and on the oleadings of the parties the appropriate issues were framed.

The learned Mumif held that respondent No. 1 had gone to Pakistan for settling there permanently and had ceased to be an Indian citizen.

The suit was dismissed.

Resoondent No. l appealed to the First Addi- G tional Civil Judge, Kanpur.

The learned Judge was of the view that respondent No. 1 had gone to Pakistan when he was a minor and when his father. who was his guardian. was in India.

By his departure to Pakistan, respondent No. 1 could not chan!!"e his nationalitv.

Even on a consideration of the evidence it could not be held that he had shifted to Pakistan with the in- H tention of settling there oermanently. His apneal was allowed and a permanent iniunction as prayed was issued.

The Un!on of India and other appellants preferred an appeal to the High

...

Court. Before the High Court a preliminary objection was taken that the civil court had no jurisdiction to try the question 1J1hether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government under Rule 30 of the Citizenship Rules framed under the Act.

This objection was repelled in view of another decision of the Hlgh Court according to which s. 9 of the Act and Rule 30 could not operate retrospectively and affect pending litigation.

Before the High Court the finding that respondent No. 1 did not go to Pakistan with the intention of settling there permanently was not challenged by the appellants.

The High Court was inclined to agree with the lower appellate court that so Jong as respondent No. 'l was a minor he could not change his Indian domicile because his parents were domiciled in this country.

The High Court proceeded to say that since resp0ndent No. 1 had spent one year in Pakistan after he had obtained majority it was necessary to investi2ate whether he had acquired, during that period, the citizenship of Pakistan. An appropriate issue was frameq and remitted to the lower appellate D court for its determination.

The appellate eourt held that respondent No. 1 had not acquired the citizenship of Pakistan . since it was not legally possible for him to do so for the reason that according to laws of Pakistan' he could become a major Only on attaining the age of twenty one.

On, December 11, 1963 the High Court disposed of the appeal of the present ap- E -pellants by dismissing it in view of the findings which were in favour of respondent No. 1.

Learned counsel for the appellants had contended before us that the civil court had no jurisdiction to decide the question of citizenship after the enforcement of the Act towards the end of F .the year 1955 in view of the provisions of Rule 30 of the Citizenship Rµles 1956 promulgated in exercise of the oower conferred bys. 18(2)(h) of the Act. Section 9 is in the following terms:

"S: 9 ( 1 ) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commC11cement of this Act, voluntarily acquired the citizenship of another country, shall upon such acquisition or, as the case max. be, such commencement, cease to be a citizen of India :

Provided that nothing in this sub-section shall apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government othse directs.

1010 SWPR!!ME CO'UllT RBPOR~S [I 969] 3 s.c.R.

(2) If any quC11tion ariies as to whether, when or A how any person has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf." Rule 30 provides :

"Authority to determine acquisition of citizenship B of another country.-(1) If any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purpose of s. 9(2) by the Central Government.

(2) The Central Government shal! jn determining C any such auestion have due regard to the rules of evidence specified in Schedule ID." The validity of the provisions of the Act and the Rules is no longer open to challenge.

It has not been disputed by learned counsel for respondent No. I that after the enforcement of the Act and promulgation of Rule 30 the only authoritv which is D competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government.

But it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined bv the courts and not by the Central Government.

In other Ji! words s. 9 of the Act cannot be j!iven retrospective ooeration so as to be made applicable to pendin!! proceedinj!S.

Thus the first point which has to he decided is whether s. 9 either expressly or bv necessarv implication has been made aPP!icable to cir would govern pendin!! proceedingS.

The lani?Ua!!e of sub-s. (1) is clear and .uneauivocal and leaves no room for doubt that it would cover all cases where an Indian citi1.en has acauired F foreiP, n nationalitv between Jan11arv 26. 1950 and its commencement or where he acauires such nationalitv after its commencement.

The words "or has at anv time 'between the 26th January 1950 and thP ommencement of this Act. voluntarilv acauired the cifr, enshin of another countrv" would become almo" redundant if onlv nrmnectiv" operatio'l is <!iven tn s. 9 (]) of G the Act.

This according to the settled mles of internretation

cnnot be done.

It must be remembered that Article 9 of the Constitution provides that no person shall be a citizen of India by virtue of Art. 5 or be deemed to be a citizen of India bv virtue of Art. 6 or Art. 8 if he has voh!ntarily acquired the citizenshin of any foreign StRte.

This means that if prior to the commencement H of the Constitution a P<'rson had voluntarilv acauired the citizenship of any foreign State he was not entitled to claim the citizcnship of India by virtue of Arts. 5 and 6 or 8.

TlllS article thus deals with cases Where the citizenship of a foreign State had been acquired by an Indian citizen prior to the commencement of the Constitution (vide lzhar Ahmed Khan v. Union of India)('). Article 11, however, makes it clear that Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

The Parliament could thus regulate the right of citizenship by law.

As pointed out in the above decision of this Court it would be open to the Parliament to affect the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are inconsisten_t with the provisions contained in other Articles in Part II of the Constitution. The Act has been enacted under the powers of the Parliament preserved by Art. 11 in express terms.

The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule. It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by Rule 30.

The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of . three kinds : (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution;

(2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and Decembr 30, 1955 i.e. the date of commencement of the Act and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.

As regards the first category they were dealt with by Art. 9 of the Constitution.

The second and the third categories would be covered by the provisions of s. 9 of the Act.

If a question arises as to whether, when or how an Indian citizen has acquired the citizenship of al)Other country that has to be determined by the Central Government by virtue of the provisions of sub-s. (2) of s. 9 read with Rule 30 of the Citizenship Rules.

Counsel for respondent No. 1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon & Another v. State of U.P. & Ors.(') which was followed in the present case.

There it was observed that a litigant, after filing a suit, acquired a vested right to have all questions determined by the court in which the suit was filed and that the institution of the suit carried with it all the rights of appeal then in force.

Referring to the normal principle that an Act is ordinarily not retrospective, that vested rights are not disturb-

(I) (1962] Supp 3 S.C.R. 235, 241, 245.

(2) A.LR. 1963 AJl.260.

SUPREME COURT REPORTS [1969] 3 s.c.!.. ·

ed and that the jurisdiction of the civil courts in pending cases is not taken away by the creation of a new tribunal for the determination of a particular question, the learned judge held that there was nothing in the language or the scheme of the Act to suggest that Parliament wanted to depart from these principles.

We are unable to agree.

In our judgment from the amplitude of the language employed in s. 9 which takes in persons in category (2) mentioned above, the intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution have to be dealt with and decided in accordance with its provisions.

In this view of the matter the entire argument which previliled with the Allahabad court can have no substance.

It has next been contended that retrospective operation should not be given to s. 9 of the Act because I~ of citizenship is a serious and grave matter and it involves loss of personal liberty.

Under Art. 21 no: person can be deprived of his life or personal liberty except according to procedure established by law.

The procedure established by law before the commencement of the Act was the ordinary procedure of determination by civil courts whenever a question arOSe about loss of Indian citizenship by acquisition of citizenship of a foreign country or State. It is suggested by learned counsel for respondent No. 1 that by giving retrospective operation to s. 9 so as to make it applicable to pending proceedings the provisions of Art. 21 will be contravened or violated.

This would render s. 9 of the Act unconstitutional.

It is somewhat difficult to appreciate the argument, much less to accede to it. If the Parliament was competent under Art. 11, which is a constitutional provision read with the relevant Entry in List I, to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before.

The new procedure would itself become the "procedure established by law" within the meaning of Art. 21 of the Constitufion.

Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of Art. 21, it is not possible to hold that by applying s. 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the c.ommencement of the Act there would be any contravention or violation of that Article.

In conclusion it may be mentioned that this could, in several cases, has consistently held that questions falling within s. 9(2) have to be determined to the extent indicated therein by the

A Central Government and not by the courts.

Such matters 111 are not covered by that provision have, however, to be deter-. mined by the courts; (sec Akbar Khan Alam Khan & AM. v.

The Union of India & Ors.(l) andlzhar Ahmed Khan v:Union of India)(') and The Government of Andhra Pradesh v. Syed Mohd.

Khan)(') B In the pre6Cllt case the High Coiirt ought not to have called for a decision of the lower appellate court Oil the issue of the plaintiff having acquired. or not acquired the Qit, izenship . of Pakistan between Jly 3, 1952 and the date of his return to India. The appeal . is, consequently, allowed and the order of the High Court is hereby set aside. It will be for the High C Court now to make appropriate orders for determinatioo of the aforesaid question by the Central Government after which alone the High Court will be in a Jl!lSitiOll to dispose of the appeal finally.

Costs will abide the result

G.C.

, (I) [1962] I S, C.R. 779.

(2) [1962] Supp; 3 S.C.R. 235.

(3) (1962) Supp. 3 S.C.R. 288.

Appeal allowed.

STATE OF UTIAR PRADESH & ORS

SHAH MOHAMMAD & ANR

March 13, 1969

Indian Citizenship Act

s. 9

Citizenship Rules, 1956

Indian High Commission

Pakistan

India

May 6. J 955

Union of India

High Court of Allahabad

s. 9(2)

Indian Citizenship Act 1955

December 30, 1955

Central Government

Abida Khatoon

s. 9

Citizenship Act 1955

s. 9

s. 9

Art. 21

s. 9

Janary 26. 19~0

s. 9

Parliament

Art. 11

Jzhar Ahmed

Seventh Schedule

January 26, 1950

Art. 9

s. 9

s. 9

s. 9

Allahabad Hi•h Court

s. 9

Art. 21

Art. 21

C. B. Agarwala

P. Rana

Ravindra Rana

Denial Latifi

M. l. Khowaja

Grover

s. 9

Indian Citizenship Act, 1955

July 22. 1953

July 20, 1954

July 15, 1954

Februarv 10, 1955

May 6, 1955

District Magistrate, Kanpur

Mumif

s. 9

December 11, 1963

Section 9

s. 9(2)

Schedule ID

s. 9

s. 9

s. 9

Article 9

Art. 5

Art. 6

Art. 8

Arts. 5 and 6

Article 11

Art. 11

Seventh Schedule

Decembr 30, 1955

Art. 9

s. 9

s. 9

Allahabad High Court

s. 9

Allahabad court

s. 9

Art. 21

s. 9

Art. 21

s. 9

Art. 11

Art. 21

Art. 21

s. 9

s. 9(2)


A MANUBllAI NANDLAL AMERSEY v.

POPATLAL MANILAL JOSW & ORS.

January 7, 1969 B [S. M. Soou, R. s. BACHAWAT AND K. s. HEGDE, JJ.]

Representation of the People Act (43 of 1951), ss. 86(5)

116A. 123(2), proviso (a)(ii)-Amendment of election petition-When should be al/owed-Jurisdiction of Supreme Court under s. 116A-Interference

irith discretion of High Court-Undue influence-Threat of divine 'displeasure.

The appellant, the Swatantra party candidate, was declared elected to the Lok Sabha as against the Congress party candidate. On April 10,

1967, the first respondent, an elector , in the constituency filed an election petition.

In the petition be charged fhe appellant with corrupt practice under s. 123(2) proviso (a) (ii) of the Representation of the People Act, 1951. The allegation was that one S.M., with the consent of the appellant or his election agents, told the electors in speeches that if they voted for the Congress candidate they would commit the sin of cow slaughter and would become objects of divine displeasure.

On September 25, 1967 the first respondent obtained an 01der giving him leave to amend the petition by adding a charge with regard to the sin of Brahma hatya and Sadhu hatya.

On February 29, 1968 the trial commenced and one of the witnesses said that he heard S.~1. giving a 'peech on February 8, 1967, where S.M. told the electors that Sri Shankaracharya had commanded them not to vote for the Congress and that a contraventio.n of the mandate ":ould be visited with spiritual censure.

On an objection being raised by the appellant's counsel, the first respondent agreed that the statement of the witness should not be treated as part of the evidence.

The trial proceeded, 11 witnesses were examined and the appellant agreed to the marking of the full reports of the speeches of S.M. as exhibits and adopted a definite line of crossexamination on the footing that the first respondent would not rely on the charge with regard to the command of Sri Shankaracharya.

However on March 5, 1968, the first respondent applied for an amendment of his petition to include a charge of corrupt practice based on the command of Sri Shankaracharya and the High Coun allowed the amendment.

The High Court set aside the appellant's election on its finding that the corrupt practice in 'relation to the command of Sri Shankaracharya was proved.

In appeal to this Court on the questions (I) Whether the High Court should have allowed the amendment; and (2) Whether the appellant was guilty of any corrupt practice,

HELD : The appellant's election was rightly set aside.

(Per Bachawat, J.) : (I) The High Court erred in allowing the amendment.

When a corrupt practice is charged against the returned candidate the election petition must setforth full particulars of the corrupt practice so as to give the charge a definite character and to enable the Court to understand what the charge is.

It must be substantially proved as laid and evidence cannot be allowed to be given in respect of a charge not dis- 7Sup CJ/69-15

closed in . the particulars. Section 86(5) of the Act, however, allom amendment of particulars, but the Court shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition, and normally, an application for amendment should be made within a reasonable time.

Though the Court has power to allow an amendment even after commencement of the trial, leave. to amend would not be granted if the petitioner was not acting in good faith or had kept back facts known to him.

1221 B--0, G-H; 222 A-BJ In the present case, the. first respondent knew of both items of corrupt practice from his witnesses who were present at the speeches made

by S.M. lf S.M. had told the electors about the mandate of Sri Shankaracharya, the witnesses must have given information to the first respondent, and no explanation was given by the first respondent as to why he withheld the information at the time of filing the petition or \\hen he first amended his petition. He was aware of the difference between the two ch<ir!, ies of telling the electors about the sin of gohctya and thal of telling the electors about the sin of disobeying the command of their religious leader. But the first respondent deliberately refrained from taking 1he new charge earlier and moved the application for amendment in ba<l faith at a very late stage of the trial.

Ordinarily, in an appeal under s. l 16A of the Act, this Court would not interfere with the discretion of the High Court in granting amendments, but since the order of the High Court has resulted in manifest injustice, this Court has the power and Juty to correct the error . .[222 B--0, F-H; 223 A-El

(Per Hegde. J.) The High Court has given good reasons in support of itll order allowing the amendment and no case was made out to inter. fcre 'vith it. ( '227 DJ

(2) (Per Bachawat, l.) There is no absolute \an on cow slaughter in several states in India and the Swatantra party was agitating for such a total ban. Public criticism of the Congress party for not abolishing cow slaughter \Vas permissible, but the criticism ceases to be legitimate if the speaker cOmmits the corrupt practice of undue influence under s. 123(2) of the Act.

Under s, 123(2), proviso (a) cl. (ii), there is such undue influence if any person, with the consent of the. candidat~ or his election agent, attempts to induce an elector to believe that he will be rendered un object of divine displeasure or spiritual censure

1224 D-FJ In the present case, S.M. spoke at the meetng on February 8, 1967 , i,.-ith the consent of the election agent of the appellant.

S.M. v.'as a Kiriankar of rePute. and well known and respected for his lectures on Hindu religion. while his audience consisted mostly of illitrate and orthodox Hindus of rural areas who are filled with horror at the slaughter of a cow.

The dominant theme of the speech was that those who commit the sin of gohat)'a would be visited with divine displeasure. Therefore. even apart from the charge relating to the command of Sri Shankaracharya, the o;; peech was calculated to interfere with the free exercise of c\ccfi-oral right.

The cocrupt practice was thus committed at the meeting on. February 8. 1967. with the consent of 1he election agent of the appellant. (224 G-H: 225 G-H; 226 F-G; 227 B-C]

Narbada Prasad v. C/i/10gan Lal, [1969] 1 S.C.R. 499, followed.

(Per Hegde, J.) Everyone of the speeches made by S. M., read as a \\'hole _are fanatical outpourings and a direct challenge to the .concept of asecUJar democracv. and fell within the vice of the proviso (a) (ii) of s. 123(2) of the Aci. [227 E]

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1438 of

1,68.

Appeal under s. 116-A of the Representation of the People Act, 1951 fJom the judgment and order dated April 22, 23, 1968 of the Gujarat High Court in Election Petition No. 22 of 1967.

I. M. Nanavati, P. M. Raval, D. N. Mishra and /. B. Dadachanji, for the appellant.

H. R. Gokha/e, K. G. Vakharia, K. L. Hath/ and Atiqur Rshman, for respondents Nos. 1 and 2.

The Judgment of S1KR1 and BAcHAWAT, JJ. was delivered by

BACHAWAT, J.

HEGDE, J. delivered a separate opinion.

Bachawat, J. This appeal is directed against a judgment of a. single judge of the Gujarat High Court setg aside the electon

of the appellant from the Banaskantha Parliamentary constituency.

At the last general election to the Lok Sabha from the Banaskantha constituency in Gujarat there were three contesting candidates.

The appellant, the Swatantra party candidate, secured 110,028 votes.

Respondent No. 2, the Congress party candidate secured 1,05,621 votes. Respondent No .. 3, an independent candidate secured 14,265 votes. The appellant was declared elected,

The election petition was filed by respondent No. 1, an elector in the constituency.

Respon®nt No. 1 alleged a number of corrupt practices on the part of the appellant or his election agents, but at the trial, he pressed only the charge of corrupt practice under s. 123(2) proviso (a) (ii) of the Representation <>f the People Act, 1951. In the petition the charge was that several persons with the consent of the appellant or his election agents induced or attempted to induce the electors to believe that if they voted for the congress party candidate they would become the objects of divine displeasure and spiritual censure.

I:n: the particulars of this charge it was alleged that in the public mettings held at Amirgadh, Ikbalgadh, Wav, Laxmipura, Tharad, Bhabhar and other places one Shambhu Ma!Iaraj told the electors that if they voted for the congress candidate they wuuld commit the sin of cow slaughter and urged them in the name of mother. cow to take a vow not to vote for the congress candidate with the result that several members of the audience publicly took the vow.

At a late stage of the trial on March 7, 1968, the High Court gave leave. to respondent No. 1 to amend the petition by adding fresh particulars of the corrupt practice. The substance of the new charge was that at those meetings Shambhu Maharaj

induced or attempted to. induce the electors to believe that their religious head Jagadguru Shankracharya had commanded them not to vote for the congress and that contravention of his command would be a sin and would be visited with spiritual censure and divine displeasure.

The High Court found that the aforesaid practice was committed by Shambhu Maharaj with the consent of one Punambhai, the election agent of the appellant, and declared the appellant's election to be void.

The appellant challenges the legality of the order passed by the High Court on March 7, 1968 allowing the amendment.

The election petition was filed on April 10, 1967. The appellant filed his written statement on June 1; on September 9, the High Court gave leave to respondent No. 1 to amend the petition, by adding the charge that certain persons were threatened that they would commit the sins of go-hatya, Brahma'hatya and Sadhuhatya, if they worked for the congress candidate.

The order disallowed amendments seeking to introduce charges of appeal to voters in the name of religion under s. 123 ( 3). The appellant filed his additi< .al written statement on October 19. Issues were framed on November 30. Respondent No. 1 filed his list of witnesses on January 11, 1968. On February 21, the trial started and P.W. 1, P.W. 2, P.W. 3 and P.W. 4 were examined.

P.W. 4, Ram Swarup was a witness With regard to the meeting at Amirgadh.

The issues were amended on March 1, so as to make it clear that there was no charge of any corrupt practice under s. 123 ( 3).

On the same date, respondent No. 1 was examined as P.W. 5.

On March 2, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 were examined.

P.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar. P.W. 9 Bhogi!al spoke about the meeting at Ikbalgadh.

On March 4, P.W. 10 and P.W. 11 were examined and spoke about the meetings at Wav and Laxmipura.

On the same day, P.W. 12 S. P. Pandya, a sub-inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short-hand writer were examined. The examination of Barot was concluded 01; March 6.

Barot proved that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh, Bhab:rnr, Laxmipura, Wav and Tharad and sent reports of the seches to S. P. Pandya.

On March 6, P.W. 14 and P.W. 15 were examined.

On March 5, respondent No. 1 filed an application for leave to amend the petition by adding portions of the speeches which referred to the command of Shankracharya not to vote for the congress and the consequences of not obeying the command. The application was allowed on March 7, 1968. The trial was then adioumed and started again on April 8. Between April 8 and April 15, P.W. 17, P.W. 18, D.W. 1 and D.W. 2 were examined. The judgment was delivered on April 22 and 23.

The first question is whether the trial judge should have allowed the amendment.

Section .83 ( l )(b) provides that "An election petition shall setforth full particulars of. any corrupt practice that the petitioner alleges, .including as full a stat~ t

as possible of the names of thp parlies alleged to have comnu• such corrupt practice and the date and place of the commis!; ion of each such practice".

The section is mandatory.

Where a corrupt practice is charged against the returned candidate lihe

election petition must selforth full particulars of the corrupt practice so as to give the charge a definite character and to enable the court to understand what the charge is.

The charge must be substantially proved as laid and e'vidence cannot be allowed to be given in respect of a charge not disclosed in the particulars.

On a charge of telling the electors that by giving their vote to the Congress candidate, they would commit the sin of go-hatya, evidence cannot be led to prove the charge of telling them that they would commit a sin of Brahma-hatya or the sin of disobeying the command of their religious leader.

Section 86(5) allows amendment of the particulars. It provides that "the High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars. of a corrupt practice not previously alleged in the petition." In Harish Chandra Bajpai v. Trlloki Singh(') the Court held that though under the English Jaw the petitioner was not obliged to give the particulars of the corrupt practice in his petition the difference was a matter of form and not of substance and that under s. 83 (3) as it stood before 1955 the Court could allow an amendmC111t introducing fresh instances of the corrupt practice alleged in the petition.

Referring to the English practice the C?urt observed at page 382 : "it is sufficient if the particulars are ordeted to be furnished within a reasonable time before the

comencement of the trial".

Sectio1_1 83 (3) has been repealed '.111d is i:ow replced by s. 86 ( 5) which forbids any amendment mtroducmg particulars of a corrupt practice not previously alleged in the petition. Assuming that the amendment of March 7, 19~7 was peni; lissible under s. 86(5), the question is whether the High Court nghtly allowed it.

Normally an application for amendment under s. 86(5) should be made within a reasonable time before the commencement of the trial.

The Court has power to allow an amendment even after the commencement of the trial, but as a rule leave to amend a.t a late stage should be given in exceptional cases where the petitioner could not with

~I) 1957]' S.C.R. 371.

reasonable diligence have discovered the new facts earlier. Leave A to amend will not be given if the petitioner is not acting in good faith or has kept back the facts known to .him before the trial

tarted.

According to respondent No. 1 Shambhu Maharaj committed corrupt practice at election meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 was present and at Wav where one Chotaii Bhattji was present and that he came to know of the corrupt practices from those persons.

All the meetings are referred to in the election petition.

If Shambhu • Maharaj had told the electors that Sri ShankrachlU')'a had commanded them not to vote for the congress candidate and that disobedience of his command would be sinful,

P.W. 4 and Chotaji Ilhattji must have informed respondent No. 1 of this corrupt practice before April 10, 1967 when the election petition was filed.

No explanation is given as to why respondent No. 1 withheld this information in the petition.

Respondent No. 1 now says that on April 17, 1967 he applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967.

Assuming that he could not get certified copies o4' the reports, he could setforth in the petition the substance of the charge with regard to the command of Sri Shankracharya from the information supplied by his 'informants.

He knew of the reports of C. B. Bi.rot before April 17, 1967.

Immediately after filing; the election petition he eould subpoena the reports and under orders of the Court he could inspect them long before the trial started. He was aware that the charge of telling the electors that they would commit the sin of go-hatya was quite different from the charge of telling them that they would commit the sin of Brahma-hatya or the sin of disobeying the command of their religious leader Sri Shankracharya.

On September 25, 1967, he obtainea an order giving him leave to amend the petition by adding the charge with regard to the sins of Brahma-hatya and Sadhu-hatya, but he deliberately refrained from adding the charge with regard to the sin of disobeying the command of Sri Shankracharya.

The trial commenced on February 29, 1968. On that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj told the electors that he had brought a mandate from Jagadguru Shankracharya. On

~.n objection being raised by the appellant's counsel Mr. Mehta, counsel for respondent No. 1, agreed that the statement of P.W. 4 would not b.e treated as part of the evidence on the record.

Thereafter the trial proceeded and 11 more witnesses were examined on the fopting that respondent No. 1 would not rely on the charge with regard to the command of Jagadguru Shankracharya.

On that footing the appellant's counsel adopted a definite .

Jin~ of cross-ex:amination.

On March 4, he CQllSented to the marking of the full reports of the speeches of Shambhu Maharaj as exhibits and on Marc:1 5, he extracted an admission

from Barot that the witness had taken verbatim notes of the speeches of Shambhu Maharaj.

Counsel adopted this line of cross-examination because he took the stand that the speeches did not prove the corrupt practice alleged in the petition.

The application for amendment was filed on March 5 and was allowed on March 7.

The order allowing the amendment has resulted in manifest injustice to the appellant. His counsel could not thereafter take the stand that the reports had been fabricated at the instance of the congress party.

Respondent No. 1 moved the application for amendment in bad faith at a very late stage of the trial. He deliberately refrained from taking the Ile\\ charge earlier.

Under s. ll 6A an appeal lies to this Court on any question whether of law or fact from the order of the High Court. Tne procedure in appeal is regulated by s. 116C. All the provisions of the Code of Civil Procedure including s. 105 apply to the appeal, and any error in an order of the trial court affecting the decisiQll of the case may be taken as a ground of objection in the appeal. In an appeal under s. ll 6A the whole case is within the jurisdiction of this Court. Normally the Court does not interfere with the Judge's discretion in granting amendnl.cnts except on grounds of Jaw but where, as in this case, the order has resulted in manifest injustice, the Court has the power and the duty to correct the error. In Evans v. Bart/am(') Lord Atkin observed:

"Appellate jurisdiction is always statutory : there is in the statute no restriction upon the jurisdiction of the court of appeal: arnt while the appellate coun in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge's discretion except on grounds of law, yet if it sees that on other ground' the decision will result in injustice being done it ha> both the power and the duty to remedy it.''

We, therefore, hold that the order of the trial judge allowin: the amendment was erroneous and must be set aside.

Respondent. No. 1 proved six speeches of Shambhu Maharaj He did not rely in the trial court on the speeches at Laxmipura Bhabhar and Tharad. Mr. Gokhale stated that he did not rel)

on these speeches for any purpose whatsoever.

Accordingly those speeches were not read in this Court. There is no charg1

(I) [1937] A.C. 473, 480-481.

against the appellant on the ground of appeal to the electors on the ground of religion. The only charge against him is that in his speeches at lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent of /his election agent Punambhai told the electors that "if they voted for the congrei; s party candidates the voters would commit the sin of cow slaughter (gaumata vadh)." Respondent No. 1 has not proved the charge that the electors were urged in the name of mother cow to take a vow not to vote for the congress party candidates, with the result that several members of the audience publicly took the vow. The Ikbalgadh speech (Ex. Bl) and the Amirgadh speech (Ex. B3) were delivered on February 8, 1967. The Wav speech (Ex. B4) was delivered on February 9, 1967. There was then an acute political controversy with regard to the total ban on cow slaughter. Section 5 (1) of the Bombay Animal Preservation Act, 1954 (Bombay Act No. LXXII of 1954) as amended by Gujarat Act No. XVI of 1961, there was a total ban on cow slaughter in Gujarat. But there was no absolute ban on cow slaughter in several other States.

The Swatantra party was agitating for a total ba11 on cow slaughter throughout India.

Public criticism of the Congress party for not abolishing cow slaughter throughout the country was pennissible and legitimate. But the criticism ceases to be legitimate if the speaker commits the corrupt practice of undue influence under s. 123(2), that is, if he interfere; or attempts to interfere with the free exercise of electoral right.

Under s. 123(2) proviso (a) cl. (ii) there is such undue influence if any person with the consent of the candidate or his election agent "induces or attempts to induce a candidate or an elector t.o believe that he, or any person in whom he is interested. will become or will be rendered an object of divine displeasure or spiritual ceILrnre." The actual effect of the speech is not material.

Corrupt practice is committed if the speech is calculated to interfere with the free exercise of electoral right and to leave no choice to the electors in the matter, see Ram Dial v.

Sanit Lal & Others(').

In considering the speeches the status of the speaker and tbe character of the audience are relevant considerations. Shambhu

Maharaj was a kirtankar of repute and well known and respected for his lectures on Hindu religion.

The audience consisted mostly of illiterate and orthodox Hindus of the rural areas, adivasis and rabaris belonging to the scheduled tribes and scheduled castes.

In this background, let us now consider the speeches.

Respondent No. 1 charges corrupt practice in respect of 4 passages in the Ikbalgadh speech (Ex. B 1), 6 passages in the Wav speech (Ex. B4) and 3 passages in the Amirgadh speech (Ex. B3).

ft) [t959] S 1pp. 2. S.C.R. 748, 758, 760.

NANDLAL v. MANlLAL (Bachawat, J.) 225

The learned trial judge found that the corrupt practice was not committed by the 1st and 2nd passages in Ex. Bl, the 1st, 2nd and 3rd and 6th passages in Ex. B4 and the 1st passage in.Ex. B3.

But the learned Judge held that 3rd and 4th passages in Ex. B 1 and the 4th and 5th passages in Ex. B4, amounted to corrupt practice as the electors were told that Sri Shankracharya had commanded them not to vote for the congress and that if they disobeyed his command they would incur divine displl'.asure and spiritual censure. We have disallowed the amendment mt:oducing this charge and we must therefor-: set aside the findmg of the learned judge with regard to those passages.

We find that the passages do not show any corrupt practice as alleged in the petition.

In the 2nd passage in the Amirgadh speech (Ex. B3) the speaker referred tc the ban on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh nd said that the Swatantra Party had promised to ban slaughter of cow progeny and exemption of land revenue.

He also said : "Sun rises and twenty two thou- 'and cows are slaughtered .... In Ahmedabad there is a prohibition on cow slaughter but the slaughtering of calf and ox is continued.

The earth took the form of a cow and if the said 'Gaumata' or ox is slaughtered how can earth be satisfied and so long as the earth is not satisfied how can there be fertility in the earth." In the third passage (Ex. B3), the speaker said:-

"In the year 1942 sixteen lacs and in 1946 twenty four lacs and in 194 7 after India became separate and at present about 1 crore cows are slaughtered.

You say whether to vote for congress is to become partner in sin or anything else. If you give cooperation for good cause you may get good fruit and if you cooperate in committing a sin you become a partner of sin. Why you bec0me a partner of sin by giving votes to congress ?"

He then referred to the command of Sri Shankracharya that the electors should not vote for the Congress party.

But even apa, rt from the command of Sri Shankracharya the electors are d1stmctly told that though there was a ban on cow slaughter in Ahmedabad, the congress was permitting the slaughter of crores of cows elsewhere in India and was committing the sin of go hat, va and those who vote for the congress would be partners in the sin. The dominant theme of the speech was that those who commit the sin of go-hatya would be visited with divine displeasure.

Having regard to the character of the audience, the speech was calculated to interfere with the free exercise of

electoral right. In Narbada Prasad v. Chhagan Lal & Ors. ( 1 ) Hidayatu!lah, C.J., observed :

"It is not necessary to enlarge upon the fact that cow is venerated in our country by ihe vast majority of. he peole an~ that they believe not only in its uuhty but Its holmess. It is also believed that one of the cardinal sins is that of go-hatya.

Therefore, it is quite obvmts that w remind the voters that they would be comm1ttmg the sm of go-hatya would be to remind them. tat they would be objects of divine displeasure or spmtuaJ. censure."

In Encycjopaedia of Religion and Ethics, edited by James Hastings, vol. 4, pp. 225, 226, it is stated :-

"A well known verse (Mahabharata, xiii. 74.4) says : 'All that kill, eat and permit the slaughter of cows, rot i, n hell for as many years as there are hairs on the body of the cow so slain.'

"Reverence for the cow has not diminished in modern times.

It is well known that the Hindus of the present day are fill¢ with horror at the slaughter of the cow, which is therefore prohibited in native States under treaties with the English."

According to B. N. Mehta's Modern Gujarati-English Dictionary, vol. 1, page 480, gohatya (go, a cow+hatya, ktlling) means ill Gujarat "slaughter of a cow; killing a cow, being one of the five great sins according to Hindu scriptures which can be atoned for only with capital punishment."

Accordingly, the offending passages in the Amirgadh speech fell within s. 123(2) proviso (a)(ii). We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting with the consent of Punambhai, the election agent of the appellant. Punambhai was present at the Amirgadh meeting.

He addressed the meeting before Shambhu Maharaj spoke.

Shambhu Maharaj addressed several other election meetings of the Swatantra party.

Punambhai issued a pamphlet calling one of the meetings. P.w, 10 proved that he was asked by Punambhai to call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had deep belief in religion. Punambhai accompanied

Shambhu Maharaj from one place to another. On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh

(I) [1969] S.C.E. 49~.

and thereafter went to Amirgadh. On February 9, he went with Shambhu Maharaj to the meeting at Wav. The offending passages. of the speech at the Amirgadh meeting are integral parts of the dominant theme of the sin of cow slaughter. They cannot be regarded as stray words spoken by Shambhu Maharaj without Punambhai's consent. Punambhai did not raise any objection to the impugned speeches at the meeting. He gave evidence in Court bnt did not say that he was not a consenting party to the offending passages.

We hold that the corrupt practice under s. 123(2) proviso (a)(ii) was committed at the Amirgadh meeting on February 8, 1967 with the consent of the election agent of the appellant.

In the result, the appeal is dismissed. There will be no order as to costs.

Hegde, J. I have had the advantage of reading the judgment just now read out by Bachawat, J.

I agree that the appeal should be dismissed.

But I am unable to agree that the amendment complained of was not properly allowed. The learned trial judge has given good reasons in support of his order. In my opinion no case is made out to interfere with that order. I am also of the opinion that each and every<'ne of the speeches made by Shambhu Maharaj which are the subject matter of this appeal, read as a whole as we should do, fall within the vice of proviso a(ii) of s. 123(2) of the Representation of the People Act 1951.

Nothing so bad as those speeches I have come across in ~Jection cases. They are fanatical outpourings and a direct challeng~ to the concept of a secular democracy.

A ppea/ dismissed.

A MANUBllAI NANDLAL AMERSEY

POPATLAL MANILAL JOSW & ORS.

R. s. BACHAWAT

K. s. HEGDE, JJ.

Representation of the People Act

ss. 86(5)

s. 116A

April 10,

1967

s. 123(2)

Representation of the People Act, 1951

September 25, 1967

Brahma hatya

Sadhu hatya

February 29, 1968

February 8, 1967

Shankaracharya

S.M.

March 5, 1968

Per Bachawat

Section 86(5)

Hegde

Bachawat

India

Swatantra party

s. 123(2)

S.M.

[1969] 1 S.C.R. 499

Per Hegde

S. M.

s. 123(2)

s. 116

Representation of the People Act, 1951

I. M. Nanavati

P. M. Raval

D. N. Mishra

B. Dadachanji

H. R. Gokha

K. G. Vakharia

K. L. Hath/

Atiqur Rshman

BAcHAWAT

BACHAWAT

HEGDE

Gujarat

Congress party

s. 123(2)

People Act, 1951

Amirgadh

Ikbalgadh

Wav

Laxmipura

Tharad

Bhabhar

Shambhu Ma!Iaraj

March 7, 1968

Shambhu Maharaj

Jagadguru Shankracharya

Punambhai

Brahma'hatya

Sadhuhatya

s. 123

January 11, 1968

Ram Swarup

s. 123

Palanpur

Bhogi!al

S. P. Pandya

C.B. Barot

Barot

Bhab

rnr

Laxmipura

Wav

Tharad

S. P. Pandya

Shankracharya

April 8 and April 15

April 22 and 23

Section 86(5)

s. 83

s. 86

March 7, 19~7 was

s. 86(5)

s. 86(5)

Shambhu Maharaj

Chotaii Bhattji

Shambhu • Maharaj

ShankrachlU')'a

Chotaji Ilhattji

April 10, 1967

April 17, 1967

C. B. Barot

Ahmedabad

May 14, 1967

C. B. Bi.rot

Brahma-hatya

Sadhu-hatya

Shambhu Maharaj

Mehta

Barot

s. 116C

the Code of Civil Procedure

s. 105

Atkin

Laxmipura Bhabhar

Gokhale

lkbalgadh

February 9, 1967

Section 5

Bombay Animal Preservation Act, 1954

s. 123(2)

s. 123(2)

Shambhu

Maharaj

S 1

Pakistan

Afghanistan

Madhya Pradesh

Swatantra Party

Hidayatu!lah,

James Hastings

B. N. Mehta

s. 123(2)

s. 123(2)

s. 123(2)

Representation of the People Act 1951