KHAJE KHANAVAR KHADERKHAN JIUSSAJN KHAN A

AND OTHERS v.

SIDDAV ANBALLI NUALINGAPPA & ANR.

February 4, 1969

(J. M. SHELAT, V. BHARGAYA AND C. A. VAD>IALINGAM, JJ.]

Constitution ,.Jf India, 1950, Art. 173(a)-Making oath or affirmation-When should be made.

Practice and Procedure-Representation of the People Act. ( 43 of 1951). s. 116A-Appea/-Taking new points-Code of Civil Procedure (Act 5 of 1908), O. 16, r. 14-Duty of Court to su1n111on court witnesses.

Notification by Election Com1nissioner under Art. 113(a)-Requirenient of making oath or affinnation before con1petent officer 'of that cons- 1ituency'-Scope of. ·

The first respondent, who was the Chief Minister of the State, and the first appellant were candidates for election to the Mysore Legislative Assembly from Shiggaon constituency.

The notification fixing the timeschedule "for the elections fixed 20th January 1967, as the last date for filing nominations, 21st as the date of scrutiny, and 23rd as the last date for withdrawal of candidature. The first respondent, had also filed his nomination at two other places, Bagalkot and Hospet, and validly made the affirmations required by Art. 173(a) of the Constitution, at those plaoes on the 19th and 20th January.

He also made the affirmation before the Returning Officer of the Shiggaon constitUency on the date of scrutiny) that is, 21st January. The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidate;, including the fin; t appellant, had withdrawn their candidature. The first appellant challenged the first respondent's election on the grounds that the first respondent was disqualified for 'failure to make the affirmation under Art. 173(a) before filing the nomination paper in Shiggaon constituency, that the withdrawal from candidature of the first appellant was attempted to be obtained by inducement, threats and undue inftuence and was in fact pro-. cured with the connivance of the Returning Officer, and that the first respondent committed other irregularities in the filing of his nomination.

It was alleged that one P was responsible for the corrupt practices with the consent of the first respondent.

P was not examined as a witness by the respondents. The first appellant filed an application to examine P as a court-witness. on the ground that the appellant cOuld not examiite him as his own witness since he would be hostile to the appellant. The High Court rejected the application. ·

The High Court, a'fter rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination, held that the affirmation made prior to scrutinY was sufficient comp, iance with the requirements of Art. 173(a}, and that the charges of corrupt practice of undue influence and •bribery against the first respondent, and the connivance of the Returning Officer in relation to the corrupt practices and irregutarities, were not proved. •

In appeal to this Court. it was contended that : (I) This Court. in Paslmoati Nath Singh v. Harihar Prasad Singh, A.I.R. 1968 S.C. 1064, held that the affirmation should be made lief ore the date of scrutiny, so that, in the present case, it should have been made at the latest by the midc

HUSSAIN KHAN V, NIJALINGAPPA 525

night between 20th and 21st January; and (2) On the failure of the first respondent to examine P an adve-rse inference should have been drawn

against the first respondent, and that the High Court erred in not summoning P as a court-witness.

HELD : ( 1) (a) Since the first appellant was permitted to raise the new gromd based upon the decision in Pashupatl Nath Singh's case, the first respondent should not be debarred from putting forward his alternative plea that Art. 173(a) wu satisfied on the basis of the affirmations made at Bagalkot and Hospet.

[532 E-F]

(b) The notification issued by the Election Commission in pursuance of Art. 173(a) stated that the affirmation should be made before the Returning Ofticer or &sistant Returning Officer for that constituency. In Uling the expression 'that constituency', the intention of the Election Commiuion was that the affirmation must be made before the Returning Officer or Assistant Returning Oflicer of that particular constituency from which the candidate was seeking election to the Legislature of the State, whether it be an Assembly Constituency or a Council Constituency.

[534 A-BJ

(c) When the first respondent made bis affirmations on the 19th and 20th before the Returning Officer at Bagalkot and Hospct respectively. he was a candidate nominated for election from those constituencies.

Once he made such an affirmation before one of the persons authorised by the Election Commission he had fully complied with the requirements of Art. 173(a), and thereupon, became qualified to be a candidate for election to the Mysore Legislative Assembly.

[534 C-E] The purpose of Art. 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must be<.1r true faith and allegiance to the Constitution as by law established and undertake to uphol<l the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. The Article require..;;; one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature <1f the State. The Article does not mention that the making of oath or lffirmation is to be preliminary to the validity of candidature in each constituency, and the Article does not require that the qualification must be acquired •!'l'arately in respect of each cowtituency from which a candidate was seeking election. Once the oath or affirmation is made before a competent authority in respect of one constituency, the candidate becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency [534 E-H; 535

A-BJ

(2) In the present case, the circumstantisJ evidence indicated that the version put forward on behalf of the appellants could not be true. Therefore, the High Court wu justified in holding that the appellants' case was shown to be false by other evidence, so that, there was no compelling reason for the High Court to examine P as a court-witness or to draw an adverse hiference against first respondent. for his failure to examine P as a witness.

[540 G-H; 541 AJ Dr. M. Chenna Reddy v. V. Ramochandra Rao, C.A. No. 1449/68 dt. 17-12-1968, R. M. Seshadri v. G. Vasantha Pai, [1969J 2 S.C.R. 1019

and Nani Gopal Swami v. Abdul Hamid Chowdhury, A.l.R. 1959 Assam 200, referred to.

ClvIL APPELLATE JURISDICTION: Civil Appeal No. 1621 of 1967.

8Sup, Cl/69~ IS

Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated August 4, 7, 8, 1967 of the Mysore High Court in Election Petition No. 2 of 1967. .

B. S. Patel, S. Paramila and R. B. Datar, for the ppellants.

A. K. Sen, S. S. Jara/i and M.

Veerappa, for respondent H No. I.

Shyamala Papp11 and S. P. Nayar, for respondent No. 2.

The Judgment of ihe Court was delivered by

Bhargava, J.

This appeal under section 1l6A of th~ Representation of the People's Act, I 951 (hereinafter referred to as "the Act") has been filed by two appellants whose election petition for setting aside the election of respondent No. 1 has been dismissed by the High Court of Mysore.

Appellant No. 1 was one of the candidates who filed his nomination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar. Appellant No. 2 was a voter in that constituency.

The notification fixing the time-schedule for the elections was issned on the 13th January, 1967, fixing 20th January. 1967 as the last date for filing nominations, 21st January, 1967 as the date of scrutiny, and 23rd January, 1967 as the last dat~ for withdrawal of candidature. According to the appellants, only eight candidates filed their nominations within time up to 20th

January, 1967. One of them was appellant No. 1.

Respondent

o. 1 was not included amongst the seven other candidates and his nomination paper was subsequently introduced amongst the records of the Returning Officer on behalf of respondent No. 1 with the aid of the Returning Officer. The Returning Officer is respondent No. 2 in the appeal, having been impleaded as respondent No. 2 in the election petition alsp. It was further pleaded that, even if any nomination paper was filed by respondent No. l. it was not accompanied by the relevant portion of the electoral roll in which the name of respondent No. 1 appeared as a voter which was necessary, because respondent No. 1 was not a voter in this constituency, but in a different constituency. No deposit as required by s. 34 of the Act was made in time; and, further still. respondent No. 1 was not qualified to be chosen to fill the seat in the Legislature, because he had not made and subscribed before the person authorised in that behalf by the Election Commission

an oath or affirmation according to the form set out for the purpo., e in the Third Schedule to the Constitution as required by Article 173 (a).

Tt was alleged that. despite all these defect<. respondent No. 1 was declared elected unopposed on the date of scrutiny on the incorrect ground that all other candidates had withdrawn their candidature. The appellants accepted the

A genuineness and validity of the withdrawals by the seven other Eandidates, leaving appellant No. 1 as the sole contesting candidate.

The further case was that, in order to have respondent No. 1 returned unopposed, corrupt practices were committed to obtain a withdiawal fonn signed by appellant No. 1 and it was filed illegally before the Returning Officer.

B The version relating to the commission of corrupt practices and to the filing of the withdrawal fonns of appellant No. 1 ma)' now be stated. The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No. 1, and by Mahalinga Shetty, the son-in-law of respondent No. 1: These two persons c caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab (hereinafter referred to as "P. W. 3"), and Nadaf Mohamad. Jafar Saheb (hereinafter referred to as "P. W. 4"), and through thein, attempted to induce appellant No. 1 to withdraw his nomination by promising to get him a long-awaited huller licence and also to get him better patronage for his book-selling business and for

0 receiving other aid and support for his matepal prosperity. The appellants allege that this inducement was offered without disclosing that respondent No. l's candidature was spurious. For this purpose,· on 20th January, 1967, at about 8.30 p.m., while appellant No. 1 was sitting at th!' shop of one Joshi, a car arrived from which P.W. 4. got down, came to appellant No. I and told

E him that Patil Puttappa was calling him an.d requesting him to go with him.

Appellant No. 1 went with P. W. 4 towards the car in which Patil Puttappa was sitting. The latter asked appellant No. 1 why he should further' trouble himself with election matters when he had enough work in c<; mnection with the shop, flour miII

and his garoen lands. He added that it will be to the advantage of appellant No. 1 to withdraw his nomination, promising that F he would assist him in his trade, get him an agency for paper and would help him to secure a licence for his huller which, he said, he had heard he was trying to obtain without success. Appellant No. 1 replied that he had filed his nomination with a view to contest the elections as his candidature had been sponsored by many people and he was not willing to withdraw his nomination.

In spite of requests having been made two or three times, appellant No. 1 refused. At a later stage, when he asked why he should withdraw his nomination, Patil Puttappa told him that they desired uncontested return of resPondent No. 1, and that was the reason why they were making that request.

Appellant No. I then objected saying that resJ)Ondent No. I had not filed his nomination.

H whereuoon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No. 1. At the time of this talk, Mahalinga Shettv was also sittinrr in the car. When appellant No. I continued to be hesitant, Patil

Puttapim asked him to go with him in the car and, in this

0 UPREME COURT REPORTS

[1969] 3 S.C.R.

suggestion, P. Ws. 3 and +supported him. Appellant No. 1 first declined to do so because he was not prepared to accede to the request for withdrawing his nomination, but, on Patil Puttappa's persistence, he agreed to go along, provided appellant No. 2 also. accompanied him. Appellant No. 1 then went to the shop bf appellant No. 2 and, thereafter, both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil (hereinafter referred to as "R. W. 3"). Patil Puttappa, Mahalinga Shelly and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No. l to withdraw his nomination. Appellant No. 1 refused, while appellant No. 2 also supported him by stating that appellant No. I had full support of the Muslims of the locality and that there was every chance of his success, so that there was no point in his withdrawing the nomination.

Thereafter, Patil Puttappa changed his tactics and told appellant No. l that it would neither be good nor safe for him to continue to refuse his request and threatened him by asking whether he would like to go on with the election or prefer to live in safely. He added that he was a Member-· of Parliament and, therefore, he could do anything to appe!lant No. l. He also produced a blank printed form and two blank sheets of white paper and asked appellant No. I to sign them, giving the threat that he will. not be allowed to go, unless he affixd hi,, signatures to them.

When a; ipcllant No. 1 looked for support to appellant No. 2, the latter was also similarly threatened, whereupon he said that there was no escape and, consequently. appellant No. 1 should sign the papers as desired by Patil Puttappa. Against his will and submitting to the pressure of Puttappa, appellant No.· 1 signed the papers which were taken away by Puttappa who left asking R. W. 3 not to permit the two appellants to go away, unless Puttappa himself told hini to let them go. The two appellants, according to them, were kept confined in the house of R. W. 3 throughout the night of 20th January and again throughout the day and night of 21st January,

1967. They were only allowed to leave the house at about 4-30 a.m. on 22nd January, 1967, when a servant of R. W. 3 woke them up and told them that they could go away. The charge put forward on the basis of these facts was that an attempt was made to bribe appellant No. I to withdraw his nomination by offering him help in obtaining the licence for the huller and in getting him agency for paper, with the further charge that signatures on the withdrawal form were obtained by undue influence. lt was further plead'ed that that withdrawal form was filed before the Returning Officer hy some one other than appellant No. 1 or his election agent. The case put forward in the election petition, thus, was that the withdrawal from candidature of appellant No. 1 was attempted to be obtained by offering inducements and by subjecting him to threats and by exercise of undue influence in

--- ·,,,

HUSSAIN KHAN V. NJJALJNGAPPA (Bhargava, l.) 529

which assistance of the Returning Officer was procured. In the co=ission of these corrupt practices, there was consent of . rependent No. 1, so that the election of respondent No. 1 was void. In order to prove the consent of respondent No. 1 to the commission of the corrupt practices, the case put forward was that, subsequent to the alleged withdrawal of candidature by all the other candidates including appellant No. 1, leaving respondent No. 1 as the sole candidate, respondent No. 1 met P. Ws .. 3 and 4 and gave them an assurance that the promises which had already been made to assist appellant No. 1 will be honoured.

The further version put forward on behalf of the appellants, subsequent to. their release from the house of R. W. 3, is that, .. when they came out of the house towards the Poona-Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, consequently, decided to gn. to Hubli for a few days .. A truck happened to pass there carrying some goods and, since they had some money, they took a lift in the truck and went

to H ubli.

They went to a apteen for refreshm, ents and on the table they found an issue of a newspaper 'Samyukta- Karnataka' in which appeareii a news item stating that respondent No. 1 had been returned uncontested at Shiggaon.

Appellant .No .. 1 felt surprised, because he had. not withdrawn his nomination.

He consulted appellant No. 2 and the two o! them, after thinking over, realised that advantage must have been taken against them of the papers which appellant No. 1 had been made to sign at the house of R. W. 3. They, therefore, decided to see a lawyer and selected Sadashiv Shankarappa Settar (hereinafter referred to as 'P. W. 2") because, besides being a lawyer, he y; as also a candidte b the election. They went to his house twice at about 9 a.m. and again at about 12-30 or 1-00 p.m., but he was not at home.

They waited on the second occasion until about 2-30 p.in. when he returned and, after taking his meals, he ultimately talked . to them at 3 p.m. As a result of the consultation P. W. 2 drafted a telegram which was despatched by the appellants at about 4-35 p.m. to the Returning Officer. In the telegram, it was mentioned by appellant No. 1 that he had read in a newspaper that he had withdrawn which was false as he had not withdrawn. and the withdrawal form was not presented by him.

He added tliat he did not know who had filled in the contents of the withdrawal form and who had presented it and, consequently, wanted the Returning Officer to treat it as invalid, adding that he was still contesting the election . from the . Shiggaon constituency. The Returning Officer .received it on the same evening, i.e., on 22nd January, 1967. but noted on it that, since it was a telegram, it could not be acted upon or considered.

Thereafter, appellant No. 1 addressed a meeting late at night in a locality called 'Durgada Bailu' in .Hubli where election propaganda was going on.

After taking further steps next day, the appellants continued to stay in

Hubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January, 1967.

On these pleadings, the case put forward was that appellant No. 1 had never withdrawn his candidature and that, since respondent No. 1 had never filed his nomina tion paper and all other candidates had withdrawn, appellant No. 1 was entitled to be Cleclared elected unopposed.

In the election petition, therefore, in addition to the relief for declaration of the election of respondent No. 1 as void, appellant No. 1 also claimed a declaration that he was the duly elected candidate from the Shiggaon constituency.

The point that was put in the fore-front by Mr. B. S. Patil, learned counsel for the appellants, and was argued first relates to the challenge of the validity of the election of respQ11dent No. 1 on the ground that he was disqualified for failure to make or subscribe an oath or affirmation in accordance with the provisions of Art. 173 (a) of the Constitution. In the election petition, it was pleaded that the oath ot affirmation should have preceded the filing of the nomination paper, so that, even if any oath or affirmation was made subsequent to the filing of the nomination paper, it would be invalid and would not avoid the disqualification.

On behalf of respondent No. 1, the reply in the written statement was that respondent No. 1 did, in fact, make an affirmation before the Returning Officer of this very constituency of Shiggaon on the date of the scrutiny, viz .. 21st January, 1967, before the Returning Officer scrutinised the nomination paper of respondent No. 1. Evidence was also led to show that, on 2 lst January, 1967, respondent No. 1 did arrive at the office of the Returning Officer just before the scrutiny of his nomination paper was being taken up and he immediately proceeded to make the affirmation. Prior to his arrival, his nomination paper for another constituency Kunda.gaol was rejected by the Returning Officer on the ground that no affirmation had been made and respondent No. I was disqualified under Art. 173 (a) . It may be mentioned that thls Returning Officer was functioning as such for three different constituencies, Shiggaon, Kundagol and Shirahatti, though his Headquarters were temporarily located at Shiggaon.

Since the affirmation w:\s made before the Returning Officer by respondent No. 1 prior to the scrutiny of his nontinatlon paper for Shiggaon Constituency, the Returning Officer held that respon-. dent No. 1 was not disqualified under Art. 173 (a:), and declared his nomination as valid.

These facts were accepted by the High Court in this case and the High Court upheld the view of the Returning Officer tltat the affirmation made prior to the scrutiny of his own nontination paper by respondent No, 1 was full compliance with , tlte requirements of Article 173 (a). The High Court repelled the argument advanced on behalf of the appellants that the affirmation should have been made before the

HUSSAIN !WAN V. NLJALINGAPPA (Bhargava, J.) 531

A filing of the nomination paper. In course of arguments on this point before us, however, neither party stuck to the position that was taken up by it before the High Court. On behalf of the appellants, the alternative legal position relied upon was that, in any case, the affirmation should have been made before the date of scrutiny, so that, in the present case, it should have been latest B by the midnight between 20th and 21st January, 1967.

Thi& plea for challenging the validity of the election of respondent No. 1 was not taken either in the pleadings or even at any later stage in the High Court. In fact, it was taken here for the first time on the basis of a decision of this Court in Pashupati Nath Singh v.

Harihar Prasa4 Singh. (1 ) In that case, this Court has clearly C held that the effect of the provision contairied in s. 36(2)(a) of the Act is that the oath or affirmation must be before the date fixed for scrutiny, so that the candidate possesses the qualification under Art. 173 (a) of the Constitution on the whole of the day on which the scrutiny of nomination has to take place.

Even though this ground was not raised in the High Court, we consider that we cannot now i¥11ore it and we have to hold that the High D Court was incorrect m rejecting the plea of the appellants on the ground that a valid affirmation had been made by respondent No. 1 on 21st January, 1967 just before the scrutiny of his nomination paper.

In view of this position taken up on behalf of the appellants, E Mr. A. K. Sen, learned counsel for respondent No. 1, put forward the alternative plea that respondent No. 1 was not disqualified under Art. 173(a) of the Constitution, because he had villidly made affirmations at two other places on the 19th and 20th January, 1967.

For this purpose, reliance was placed on the statements made by respondent No. 1 when he was cross-examined on behalf of the appellants. Respondent No. 1 at one stage F stated that he filed his nomination at Bagalkot on the 19th January, 1967 between 2 and 3-00 p.m. in the afternoon. On further cross-examination came his statement that, at Bagalkot he subscribed to the affirmation on the very day on which he presented his nomination pape!i and he also confirmed that he was in a position to affirm on personal knowledge that he had filed G his nomination at Bagalkot on the 19th January, 1967. Similarly, he also stated that he filed his nomination for the Hoovinahadagali Constituency at Hospet and, though he could not giVe the exact date on which he filed the nomination paoer, he remembered that he subscribed to the affirmation there on the night of 20th

January, 1967. It W!\S urged by Mr. Sen that, having made affir-

H mation once either at Bagalkot or at Hospet in accordance with the requirements of law, respondent No. 1 became qualified under Art. 173 (a) of the Constitution to be a candidate for the Legisla

(1) A.I.R.1968S.C. !064.

tive Assembly and, therefore, it was immaterial that he did not again make an affirmation in time before the Returning Officer of Shiggaon Constituency.

This claim was resisted by Mr. Patil 011 two grounds. The first point urged was that this was a new case being set up on behalf of respondent No. 1 for the first time in this Court and it should not, therefore, be taken into account.

The second was that, in any case, the affirmation at Bagalkot or Hospet could not enure to the benefit of respondent No. l for holding him to be qualified under An. 173(a) of the Constitution to stand as a candidate from Shiggaon Constituency. On the first point, we consider that, in view of the position noticed by us earlier, respondent No. l is fully justified on relying on this alternative case in this Court, even though it as not put forward during the trial in the High Court. While the case was being tried in the High Court, the plea put forward by the appellants themselve; was different from the plea on the basis of which the affirmation made by respondent No. 1 at Shiggaon on 21st January, 1967 is being held to be insufficient for conipliailcc. with the requirements of Art. 173 (a). In the High Court, that affirmation was challenged solely on the ground that it should have been made prior ti> the filing of the nomination paper; and that ground, of course, had no force, because the form of affirmation given in the Third Schedule to the Constitution itself makes it manifest that the affirmation must be made after the nomination paper has been filed. Now that we have permitted the appellants to raise a new ground and rely on the decision given by this Court in Pashupati Nath Singh's case('), there is no justification for debarring respondent No. 1 from putting forward the alternative case 'JD the basis of the affirmations made at Bagalkot and Hospet.

The fact of affirmations having been made by respondent No. 1 at those two places before the Returning Officers of those Constituencies was elicited by the counsel for the appellants themselves in the crossexamination.

The facts, having come on record, cannot be ignored, so that reliance has rightly been placed on !hose fact< on behalf of respondent No. 1.

On the second point, the argument has proceeded primarily on the language of the notification issued by the Election Commission in pursuance of clause (a) of Art. 173 of the Constitution.

Article 173(a) is as follows:-

"173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he,-

(a) is a citizen of India, and makes and sub-

cribes before some person authorized in that behalf by H the Election Commission an oath or affirmation ccord-

(1) A.LR. 1968 S.C. 1064.

A ing to the form set out for the purpose in the Third Schedule."

The notification issued by the Election Commission, which is No. 3/130/65(2), dated 2nd January, 1965, is to the following effect:-

"In pursuance of clause (a) of Article 17 3 of the Constitution, and in supersession of its notification No. 3/130/63(2), dated the 15th November, 1963, the Election Commission hereby directs (a) that candidate for election to the Legislature of a State by an assembly constituency, or a council constituency, shall make and subscribe the oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution, before the Returning Officer or an Assistant Returning Officer for that constituency; and

(b) that a candidate for election to fill a seat or seats in the Legislative Council of a State by the members of the Legislative Assembly of the State, shall make

and subscribe the said oath or affirmation before the Returning Officer or the Assistant Returning Officer for that election :

Provided that if any such candidate is at the time confined in a prison or under preventive detention, he may make and subscribe the said oath or affirmation before the Superintendent of the prison or Commandent of the detention camp in which he is so confined or under such detention."

The controversy between the panies has arisen because of the language used by the Election Commission in this notification.

The notification requires that a .candidate for election to a Legislature of a State by an Assembly Constituency or a Council Constituency must make and subscribe the oath or affirmation before the Return4ig Officer or an Assistant Returning Officer for that Constituency. Mr. Sen urged that this notification can be interpreted in two ways.

The first interpretation sought to be put on it was that, according to this notification, if a person is a candidate for election to the Legislature of a State by an Assembly Constituency, all that it requires is that the affirmation mast be made before the Returning Officer of an Assembly Constituency, while, if he is seeking election to a Council Constituency, then the affirmation must be made before the Returning Officer of a Council Constituency. In putting this interpretation, learned counsel wants us to hold that the expressiop "Returning Officer for that Constituency" refers to any Returning Officer of a Legislative Assembly or a Legislative Council, as the case may be.

We do not think that this interpretation can be accepted by us.

In using the expression "that Constituency", it is clear that he intention of the Election Commission was that the affirmation must be made before the Returning Officer of that particular constituency from which the candidate is seeking election. to the Legislature of the State, whether it be an Assembly Constituency or a Council Constituency.

This was the second interpretation which Mr. Sen himself accepted as a possible one. This is also the interpretation which was sought to be put on this notification by Mr. B. S. Patil on behalf of the appellants. We think that this interpretation is correct, so that, in order to get over the disqualification laid dowfl in Art. 173(a), a candidate must make an affirmation before the Returning Officer or an Assistant Returning Officer of that particular constituency from which he is a candidate.

Mr. Sen's case is that, even on this interpretation, respondent No. 1 had qualified to be a candidate, because, when he made the affirmation tdore the Returning Officer at Bagalkot, he was already a candidate nominated for election from that constituency.

Similarly, when he made the affirmation before the Returning Officer at Hospet, he had already been nominated as a candidate for the Hoovinahadagali Constituency.

The argument was that, once respondent No. l had made an affirmation, as required by Art. 173(a) of the Constitution, before one of the persons authorised by the Elcsticn Commission, he hr'd fully complied with the requirements of Art. 173(a) and, thereupon, he bacame qualified to be a candidate for election to the Mysore Legislative Assembly.

There was no Tequirement that that qualification must be acquired separately in respect of each constituency from which respondent No. J was seeking election. We are of the view that this submission must be accepted. The purpose of Art. 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. Once such an oath or affinnation is made before a competent authority in respect of one constituency, he becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency, so ihat there is no necessity that he must make oath or affirmation repeatedly on his being nominated from more than one constituency.

The language of Art. 173 (a) also makes this very clear, because all that it rquires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Le?islature of the State. The Article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature. in each constituency, and

A recognises the fact that, once the necessary qualification is obtained,. that qualification removes the bar laid down by that Article.

In these circumstances, this ground of disqualification for challenging the validity of the election of respondent No. 1 fails and must be rejected.

We may next take up the question of the charges of corrupt practices alleged to have been committed with the consent of respondent No. I relating to bribery, undue influence and obtaining of assistance from a Government servant, viz., the Returning Otlicer.

In support of these charges, only six witnesses were examined on behalf of the appellants. Two of them, P. W. 5 and P.

W. 6, are appellant No. 2 and appellant No. 1 respectively.

Two other witne<>es are Cha:nan Sab, P. W. 3, and Mohammad Jaffar Saheb, P. W. 4; and the fifth witness is Sadashiv Shankarappa Settar. P. W. 2.

We have already referred to alt these witnes; es when giving the version put forward on behalf of the appellants. The only other witness who remains to be mentioned is Hanumamhasa Pawar. P. W. 1, a photographer, who came forward to state that he took a photograph in the office of the Returning Officer at about 5 p.rn. on the 21st January 1967. when respondent No. I and the Returning Officer were sitting close to each mher after the scrutiny of the nomination papers.

He was examined primarily to show the close connection between respondent No. 1 and the Returning Officer, respondent No. 2. As against these witnesses examined on behalf of the appellants. respondent No. I examined five witnesses.

R. W. 1 is respondent "<o. 1 himself, and R. W. 5 is Hanumanthappa Shivabasappa Hosamani, respondent No. 2, who was the Returning Officer. A third witness for the respondents is Gadigeppagouda Channabasanagouda Patil. R. W. 2, who was first put forward as the official. candidate by the Congress from this Shiggaon Constituency, but who himself took active part in persuading resp-ondent No. 1 to be a candidate on behalf of the Congress from this Constituency.

The next witness examined is Hanumanthagouda Ayyangouda Patil, R. W. 3, who was the proposer of respondent No. 1 in the nomination paper filed in this Constituency and in whose house. the appellants alleged, they were kept confined from the night of 20th January up to the early hours of the morning of 22nd January. 1967. The fifth witness is Gurupadappa Basappa Mahalinga Shetty, R. W. 4, the son-in'law of respondent No. 1.

The High Court, in assessing the'value of the evidence given on behalf of the two parties, has expressed the ooinion that all the witnesses examined by either side are persons interested in the two rival candidates, except the Returning Officer, R. W. 5, in whose case the High Court has not accepted the charge of partiality brought by the appellants in the election petition~ The High Court, therefore, perferred to rely on the evidence of R.W. 5, and

attached very little value to the evidence of the Oilier witnCMCS A examined by the two sides.

We are inclined to agree with the 'High Curt with regard to the assessment of the value of the evidence of the witnesses examined by both sides and, even with regard to the evidence of the Returning Officer, R. W. 5, we have the feeling that his evidence miist also be accepted with great caution, because it cannot be said that he was totally disinterested and independent.

So far as the witnesses examined on behalf of the appellants are concerned, the two appellants themselves' are the election petitioners and, very clearly, their testimony has only the value that can be attached to evidence of contesting parties themselves who are bound to speak in support of their case. Mr. Patil .particularly relied on the evidence of P. Ws 3 and 4 who, according to the part played by them envisaged in the version put forward on behalf of the appellants, were in a position to state to facts showing that there was offer of bribery to appellant No. 1 and undue influence was also exercised against them.

These witnesses are also admittedly highly interested.

Appellant N'o. 1 in. his statement has come forward with the plea that P. W. 4, Mohammad Jaffar, was one of the persons who was sponsoririg his candidature for this election, so that there was a close bond between them.

In fact, the appellants" further case itself was that appellant No. 1 was approached by Patil Puttappa through P. W. 4 because of the close relations between them.

P. W. 3 also, according to appellant No. 1, was brought in by Patil Puttappa because he was a great friend of P. W. 4 and was expected to inlluence him in his attempts to persuade appellant No. 1 to withdraw.

Thus. in putting forward their own case, the appellants have shown that P.Ws. 3 and 4 are not independent persons.

P. W. 2 was the lawyer engaged by the , appellants for the purpose of putting forward their case that the withdrawal of his CllJldidature by appellant No. I was not genuine and had been manoeuvred by persons acting on behalf of respondent No. 1. Being their lawyer, he cannot be held to be beyond the influence of the appellants.

So far as P.W. l, the Photographer, is concerned, the High Court has found that there is material in his own evidence indicating that he is not a very reliable person and we find no reason at a II to differ from the view taken by the High Court on this point.

Similarly, amongst the witnesses examined on behalf of . respondent No. I, R. W. I is respondent No. 1 himself and, consequently, the view we have expressed with reganj to aopel- Jants 1 and 2 will equally apply to him. R. W. 2 was the official Congress candidate. He withdrew his candidature and 'took an active part in persuading respondent No. I to be a candidate in his place.

He was, therefore, clearly a person interested in the candidature of respondent No. I. R. W. 3 was the proposer

who nominated respondent No. 1 as the candidate in this Shiggaon Constituency and this manifests his interest in the candidature of respondent No. l. R.W. 4 is the son-in-law of respondent No. I who also took active part in arranging that the official candidate R.W. 2 withdrew from candidature and respondent No. I was made the candidate on behalf of the Congress in this Constituency in his place.

None of these four witnesses can, therefore, be said to be independent.

So far as the Returning Officer, R. W. 5, is concerned, he was a Government servant and was acting in his official capacity as Returning Officer in this Constituency. In assessing the value of his evidence, however, one fact prominently brought out is that he was in the service of the Government of the State of Mysore, while respondent No. I was the Chief Minister of the State. R. W. 5 himself admitted that, earlier, when he was posted at Bagalkot as Assistant Commissioner in July, 1963, he had collected gold for the National Defence Fund and on the occasion of a visit, Smt. Indira Gandhi and the Chief Minister, respondent No. I, were weighed against gold collected for the purpose of National Defence Fund. The weighment of the Chief Minister against gold indicates the attempt made by this witness to please the Chief Minister.

Then, there seems to be some force in the suggestion made that, on the day of scrutiny, the Returning Officer delayed the scrutiny of the nomination paper of respondent No. 1 for the Shiggaon Constituency probably at the suggestion of the workers of respondent No. 1 in order to give as much time as possible to respondent No. 1 to come and make an affirmation as required by Art. 173 (a), under the impression that such an affirmation made even on that day would be valid and would remove the disqualification under that Article.

On that day, scrutiny of nomination papers of all the three Constituencies, for which R. W. 5 was the Returning Officer, was to take place. The scrutiny was begun not at the time fixed for it, but at a later hour and, even in that scrutiny, the nomination papers for Shiggaon Constituency were taken up last of all.

It .is true that he rejected the nomination paper of respondent No. I for the Kundagol Constituency, because respondent No. 1 did not arrive before the scrutiny of his nomination paper for that Constituency in order to make the affirmation; but even that does not show that the Returning Officer was not trying to assist respondent No. 1 as far as possible. Then, there is the circumstance that respondent No. 1 and this witness were photographed together by P. W. 1.

Of course, the photogranhs produced bv P. W. I r~ not .of a very reliable character, because the negative'., or the ongmal-s1zed photographs have not been produced by the photographer. The suggestion by Mr. Sen on behalf of respondent No. 1 was that the photographs were actually taken of a number of people who happened to be in the office of the Returning Officer by this photographer, but, for the purpose of urging the argument of close contact between R. W. 5 and respondent No. l, only a small part of that photograph was enlarged and has been put forward as Exhibit in this case.

The part of the photograph brought before the Court is confined to that in which respondent No. 1 and the Returning Officer appeared, while others on both sides of them were excluded. The photographer, in order to justify his evidence that his photographs included only these two persons, had per force to give an explanation for non-production of the negatives and the original-sized positives which might have been prepared by him, because the negatives and those prints would have clearly shown other persons also in the photographs.

Despite these , !acts, we still think that the photographs do give. some indication that the Returning Officer was showing special consideration to respondent No, 1 because he was the Chief Minister and at least gave him a scat close to himself inside his office.

Jn all these circumstances, it is not possible to hold that the Returning Officer is a totally independent witness; but, in .our opinion, these few circumstances would not justify our rejecting the evidence of this witness in toto. The evidence will have to be scrutinised carefully and must be accepted 'It least to the extent to which it may be supported by circumstantial evidence.

Jn connection with the examination of witnesses, great emphasis was laid by Mr. Patil on the fact that Patil Puttappa, who, according to the appellants, was the chief architect in manoeuvring the unopposed return of respondent No. 1 from the Shiggaon Constituency, was not examined as a witness. It appears that the appellants themselves first summoned Patil Puttappa to produce certain documents for the purpose of showing that he was under great obligation to respondent No. 1 making it likely that he might have resorted to all kinds of practices in order to ensure uncontested return of respondent No. 1 to the Legislature.

Patil Puttappa produced a statement showing the income that he received from advertisement• given on behalf of the State Government during the period from 1962-63 to 1966-67.

Patil Puttappa was running two papers 'Viswavani' and 'Prapancha' during thi, period.

For the newspaper 'Viswavani', the total advertisement charges paid to him by the Government in the first year 1962-63 were in the region of Rs. 27 ,000. The amount progressively increased in the next four years; and in the last year 1966-67, it rose to about Rs. 81,000. It was urged that this shows that he had been receiving Patronage from the Government of Mysore of which, during this period, respondent No. 1 was the Chief Minister.

Further, he was elected as a Member of the Rajya Sabha and was an active worker of the Congress. The argument was that,

in these circumstances, when the charge in the election petition was that Patil Puttappa was the main instrument in the commission of corrupt practices, he should have been examined as a witness.

The appellants themselves, no doubt, summoned hin1 to produce the statement of accounts, as mentioned above, but they could not examine him as a witness, because he would have been clearly hostile and, by examining him as their witness, the appellants would have conceded to the counsel for respondent No. I the advantage of being legally entitled to cross-examine him.

Respondent No. 1 also cited Patil Puttappa as one of the witnesses in the list of witnesses filed, but, later, gave him up and did not examine him as a witness.

After this failure on the part of respondent No .. 1 to examine hinl, the appellants moved an application to the Court to take his evidence under 0.16, r. 14 of the Code of Civil Procedure as a Court witness.

This application was not accepted by the High Court and, after a long discussion as to the motives which had impelled the appellants to move this application, the High Court rejected it.

Mr. Patil, in this connection, relied on a decision of the Assam High Court in Nani Gopal Swami v. Abdul Hamid Choudhury and Another(') to urge that, though the burden of proof in the present .:ase in respect of the corrupt practices was initially on the appellants, respondent No. 1 was not altogether absolved from his responsibility to assist the Court by producing the best evidence available after the appellants had tendered their own evidence. lt was urged that, on the failure of respondent No. 1 to examine Patil Puttappa, an adverse inference should be drawn against hinl.

Reference was also made to a recent decision of this Court in Dr. M. Chenna Reddy v. V. Ramachandra Rao and Another(') where the non-examination of the best person who' could have come and given evidence in favour of the candidate who was charged with corrupt practice was taken as one of the circumstances justifying the belief of witnesses examined to prove the corrupt practice on behalf of the opposite party. This inference was, however, drawn by this Court on the basis that the Court first found the testimony of witnesses examined against the successful candidate as acceptable, so that the initial burden which lay on the election petitioner was discharged to the satisfaction of the Court.

The third case, to which reference was made, is also a recent decision of this Coun in R. M. Seshadri

v. G. Vasan_tha Pai('), where this Court dealt with the question of the erc1se .of power by the. Coun tryin 0 the election petition to examme a witness as court witness. It was held that the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence.

It was explained that the policy of election law

(!) A.l.R. 1959 Assam 200.

(2) [1969] S.C.R.

(J) [1969J 2 S.C.R. 1019.

seems to be that, for the establishment of purity of elections, A all allegations of mal-practices, including corrupt practices at elections, should be thoroughly investigated. On these principles, the Court held that the trial Judge of the High Court had properly exercised the power of summoning and examining some persons as court witnesses.

On the basis of these cases, it was argued thl!t it was the duty of respondent No. 1 to examine Patil Puttappa in this case because he was in the best position to deny the allegations which had been made, in respect 'of the corrupt practices, by the appellants and that, in any case, the Court should have summoned him as a witness when an application was presented in that behalf by the appellants invoking the power of the Conrt under 0.16, r. 14, C.P.C. It appears that, in this case, respondent No. l considered it unnecessary to produce Patil Puttappa as a witness because of the view that the evidence, which had been given on behalf of the appellants to prove the corrupt practices, was of a very unsatisfactory nature and that even circumstantial evidence was available to show that the version put forward could not be true. The High Court also considered it unnecessary to summon Patil Puttappa as a court witness for similar reasons. In this connection, we may cite further remarks made by this Court in the case of R. M. Seshadri(') to the fo!lowi1ng effect :-

"Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which wbuld throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a corrupt practice had in fact been perpeterated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice."

It was on this principle that this Court upheld the course adopted by the High Court by summoning court witnesses in order to satisfy itself that the corrupt practice had in fact been committed.

In the present case, as we shall presently show, there was plenty of circumstantial evidence indicating that the version put forward on behalf of the 'appellants could. not be true and the High Court could justifiably take the view that it had not been proved to its satisfaction, so that there was no compelling reason for the High Court to examine Patil Puttappa as a court

(t) [19691 2 S.C.R. 1019.

HUSSAIN KltAN v. NIJAtINGAPPA (Bhargava, I.) 541

A witness or even to draw any inference against respondent No. 1 for his failure to examine Patil Puttapp_a as a witness.

We proceed to indicate our reasons for the '?ew: that the version relating to the commission of corrupt practtces has been rightly rejected by the High Court. The story that has been put

9. forward on beha!f of the appellants has already been described by us in detail when giving the facts o~ the case. The appellants alleged that they were taken to the house of R. W. 3 in the early. hours of the night of 20th January, .1967 and were kept in confinement till the morning of 22nd January, 1967.

According to the appellants, though they were kept at the house of R. W. 3 and were told that they wollld not be allowed to leave, there was C actually no use of force at all against them. In fact, the version given by the two appellants of their confinement in the house of R W. 3 is that they remained there throughout the night of 20th

January and throughout the day hours <!f 21st January, 1967, without making any attempt to leave the house of R. W. 3 .. They expect the Court to believe that no such attempt was made by D them simply because, at one stage, Patil Puttappa had said that appellant No. 1 had the option of either remaining a candidate for election, or of continuing to live.

Apart from this verbal threat, there is no suggestion that any act was committed by any one there winch could put the appellants in fear of their life or of being hurt if they tried to leave the house of R. W. 3. Accords. ing to their version, they guietly stayed in the house without even making a pretence of leaving it simply because Patil Puttappa, when going away, had told R. W. 3 not to let them go until he gave permission.

The first attempt, according to them, was made some time late in the night of 21st January and that attempt was foiled because of the barking of a dog.

Even, I' when relating this part of their story, the appellants did not say that the dog was ferodous or tried to bite them, or that any of the servants woke up and came to stop them from going away.

In fact, the initial story that like simpletons these two persons, one of whom was a 1; andidate for membership of a legislature, entered the car of Patil Puttappa and quietly went with him to the residence of R.W. 3 appears to be highly improbable. Their G conduct, after their release from the alleged confinement, also seems to be highly improbable. -According to them, they did not go back to their village because they were feeling ashamed.

Why there should have been any feeling of shame is incomprehensible.

If they were kept in confinement under threats of injury,.there would have been no shame in going home and dis- H cl.osing s circumstance. In fact, according to appellant No. l,

~1s can~1dature had be1:1 sponsored by quite a large number of

in!Juentlal persons of Shiggaon and, consequently, it would have been quite _natural for him to go to Shiggaon, as soon as he was

SSupCJ/69-16

542 SUPREME COURT REPORTi [ 1969] 3 s.c.R.

released from confinement, and seek their assistance against whatever course might have been adopted in order to defeat his candidature.

Having ben absent from their houses from the night of 20th January until the early hours of 22nd January, it would have been natural for them to go back to their homes and relieve the anxiety of t\le members of their families who must have been wondering where they had gone away.

According to the appellants, they did not return to their village until the 24th of January and sent no message to their houses that tbey were safe and were in Hubli.

The whole conduct appears to be very impro)lable.

Apart from this, there are admissions made by the witnesses of the appellants themselves and some documentary evidence which show that the appellants could not have been in confinement in the house of R. W. 3 from the night of 20th January up to the morning of 22nd January, 1967.

P. W. 3 in his examination-in-chief itself, when relating the. incident of 21st January, 1967, stated that on that day respondent No. 1 sent for him and P. W. 4 and told them that whatever promises had been made by Patil Puttappa would be fulfilled and they could give that information to appellant No. 1.

Thereafter, they went to the house of appellant No. 1 and passed on this information to him.

Thus, P. W. 3 admitted that appellant No. 1 was at his house on the evening of 21st January which completely negatives the case that he and appellant No. 2 were both in confinement at the house bf R. W., 3.

When this statement was made by this witness, counsel for tlie appellants intervened and put a question whether appellant No. 1 was at home and what happened after they went to his house.

When answering these questions, the witness realised that he had given a stateme.nt negativing the appellants' case and, therefore, he changed his statement and said that the mother of appellant No. 1 told him that appellant No. 1 was not in the house. We are inclined to agree with the High Court that this witness, in fact,· gave away the truth inadvertently disproving the appellants' case when he stated that be and P. W. 4 bad gone to the house of appellant No. 1 on the 21st January, 1967 and informed him of what respondent No. 1 had told them.

In this connection, there. is the circumstance that another' witness examined by the appellants themselves also supports the version that appellant No. 1 must have been at his house on-the evening of 21st January .. That witness is P. W. 1, the photographer.

He was asked in his cross-examination as •to when appellant No. 1 had taken the photos from him, and bis answer was that it was on the same day when the photograph was taken.

He had earlier staled that the photograph was taken in the office of the Returning Officer at about 5 p.m. on 21st January, 1967.

This answer given by this witness also belied the case put forward on behalf of the appellants about their confinement in the house of R. W. 3.

At the stage of this answer given by the witness, the counsel for the appellants had also intervened and suggested that the witness had been pointing to the Returning Officer who was sitting in Court and not to appellant No. 1.

The Court thereupon repeated the question to the witness and the note by the Court shows that the witness was quite clear that the copies which were retained by him in his Studio were taken by appellant No. 1 whom he identified by sight in Court. It appears that he also got a hint at this stage and, therefore, added that he was not sure of the exact date on which appellant No. 1 took the copies from him.

This attempt of the witness to get out of the admission made by him contradicting the case put forward by the appellants has rightly been disregarded by the High Court, and the conclusion follows that P. W. 1 has also given evidence which shows the falsity of the story of confinement put forward by the appellants.

Another circumstance that points in the same direction is that the appellants, if they were in fact kept in illegal confinement, made no attempt at all to file any complaints either with the Police or before a Magistrate so as to seek redress against this criminal offence committed against them.

Even on 22nd January, 1967, when appellant No. 1 addressed the meeting at 'Durgada Bailu' in Hubli, he did not tell the people about his illegal confinement and the corrupt practice committed by the workers of respondent No. 1 in order to obtain his withdrawal.

The most telling circumstance, however, which leaves no room for doubt that the version of the appellants about their confinement in the house of R. W. 3 until the early hours of 22nd January, 1967, is false, is that an item appeared in the newspaper 'Vishal Karnataka' in the morning issue of 22nd January, 1967, saying that one only out of the five candidates who had withdrawn their candidature had been made to withdraw his nomination pape~ by use of force and great threat; and it was learnt that, as against this, a notice had been caused to be

given through a Pleader.

Appellant No. 1 himself admitted that this newspaper is a daily morning paper so that this particular issue came out on the morning of 22nd January, 1967.

According to the version given by appellants 1 and 2, they were kept in confinement at the residence of R. W. 3 until released at about 4-30 a.m. on 22nd January whereafter they proceeded to Hubli and, for the first time, gave their version of confinement to their lawyer, P. W. 2, at about 3 p.m.

According to them, they did not mention their confinement and use of force or of threats against them to anyone else until they were able to consult P, W. 2 at about 3 p.m. lf this evidence was true, it is

; rincomprehensible how the news of obtaining withdrawal of a nomination paper by use of force and great threat could appear in the morning issue of 22nd January, 1967 which came out several hours earlier.

Mr. Patil, learned. counsel for the appellants, tried to explain away this news by comparing it with another item of news appearing in an issue of the newspaper 'Prajavani' published from Bangalore on the morning of 22nd January, 1967. The news item in it purports to be dated 20th January, 1967 and is to the effect that the Chief Minister is about to bring about the first and the most important success to the Mysore Pradesh Congress by his uncontested election from the Shiggaon Assembly Constituency. It mentions that, as the other contestants had withdrawn their candidature, only the candidature of respondent No. I was remaining in Shiggaon Constituency and he was going to be declared elected uncontested on the 23rd January, 1967, which was the last date fixed for withdrawal of candidature.

From the fact that this news item was published as an item of 20th January, it was argued that there must have been a pre-arranged plan to manoeuvre the withdrawal of all candidates from the Shiggaon Constituency for the purpose of achieving uncontested return of respondent No. 1, because there could not be and there were no withdrawals on' 20th January which was the date for filing nominations, and the evidence also proves clearly that the withdrawals, in fact, took place on 21st January, 1967, which was the date of scrutiny.

It, however, appears to us that, in th.is newspaper, the date January 20 as the date of the news item is incorrect.

If, in Bangalore, this news item had been received by the newspaper , on 20th January, it would surely have been published in the issue of 21st January. The very fact that it was published in the issue of .22nd January shows that this news must have been received by the newspaper on 21st January and the date January 20 printed in it is an error in printing.

No newspaper would unnecessarily delay such a news item by full 24 hours. On the 21st January, according to the evidence given by the Returning Officer and other witnesses examined on behalf of respondent No. l, all the withdrawals had taken place by about to 4 p.m.

Of course, thereafter, this news about withdrawals could have been flashed to Bangalore and received there later in the evening of 21st January, so that it could be published in the morning issue of 'Prajavani' of 22nd January, 1967.

The publication of this news is, therefore, not at all comparable with the publication in Vishal Karnatajca, to which we referred earlier.

It is significant that the newspaper Vishal Kamataka, which is published at Hubli, was inierested in appellant No. 1. This is clear from the circumstance that, after printing this news item about use of force and great threat to induce a candidate to withdraw his nomination, this very newspaper published a number of

c . .

appeals to raise funds in order to support the case of appellant No. 1 for challenging the uncontested election of respoi; ident No. I. The publication of these appeals in subsequent issues of Vishal Karnataka has been admitted by appellant No. 1. The subscriptions were to be sent to Vishal Karnataka Office.

In these circumstances, an inference clearly follows that, in fact, appellants No. 1 and 2 were not kept in confinement at the residence of 'R. W. 3 and they deliberately made out this story to challenge the uncontested election of respondent No. 1 some time on the evening of 21st January, 1967.

Having decided that the election shguld be challenged on such a ground, they gave out this news item to Vishal Karnata.ka; but they did not realise that the publication of this news item would itself betray them and make it clear that they could not have been kept in confinement up to the early hours of 22nd January, 1967, which was the version they decided to put forward against respondent No. I. Mr. Patil, learned counsel for the appellants, also tried to suggest that this news item might refer to the withdrawal of candidature of some candidate other than appellant No. l, but we can see no basis for such a suggestion. No witness has made any statement indicating that any candidate other than appellant No. 1 had the grievance that the withdrawal of his nommation had been obtained by use of force or threats.

None of the witnesses of the appellants, including P.W. 2, S.S. Sattar, their legal adviser, have stated that any other candidate was made to withdraw in that manner. On the other hand, in the election petition itself, the appellants have come Jorward with the case that the withdrawals of all other candidates, except his OWn, were voluntary and valid.

This plea was put forward in order to claim the seat for appellant No. 1 himself on the election of respondent No. 1 being declared void; but this pleading clearly negatives any possible suggestion that there was some other candidate who was also subjected to threats and use of force to induce him to withdraw his candidature.

Obviously, this news item could refer to no one else, except appellant No. 1 and it could only appear in the morning issue of 22nd January, because the appellants were not under confinement on the 21st January, 1967. This piece of evidence, thus leaves no room for

oubt that the entire story of use of inducements, threats and Illegal confinement has been concocted by the appellant so that the witnesses examined in support of it cannot be at all relied upon.

In these circumstances, we hold, as we have indicated earlier, .that the H.igh Court was justified in not iusisting on the production of Patil Puttappa as a witness on behalf of respondent. No. 1 or in not examining him as a court witness.

The

ves1on put forward by the appellants was controverted in his

ev1deince by R. W. 4, Malral.inga Shetty who, according to the appellants, was in the company of Patil Puttappa at both stages

when bribe was offered to appellant No. 1 and, later, when he was induced by threats and illegal confinement to withdraw his candidature.

Further, R. W. 3 was examined to controvert the version of the incident alleged to have taken place at his residence during the illegl confinement of the appellants.

Such evidence being avail.able and the version put forward on behalf of the appellants having been shown to be false by various circumstances indicated by us above, there could be no need for the Court to take the step of examining Patil l'uttappa as .a court witness. The High Court was fully justified in holding that the charges of corrupt practices of undue influence and bribery had not been proved against respondent No. 1.

The additional charge of obtaining assistance from a Government servant, viz., the Returning Officer, respondent No. 2, is also linked up with the same version of the appellants which we have above held to be false. Respondent No. 2 was said to have assisted in illegally obtaining the withdrawal of the candidature of appellant No. 1 by being a party to a faked withdrawal form being accepted by him. The case was that the withdrawal fonn of appellant No. 1 was not presented either by appellant No. 1 himself or by his election agent having been obtained in the circumstances indicated by the appellants Jn their version.

Respondent No. 2 has, however, clearly stated that this withdrawal form of appellant No. 1 was presented by appellant No. I himself, and we find no reason to disbelieve his evidence in view of our finding about the falsity of the version of the appellant.

It is also significant that no witness was sought to be examined on behalf of the appellants to prove who in fact presented the withdrawal form on his behalf if appellant No. 1 did not do so.

In view of the circumstantial evidence being in favour of the version put forward by the respondents, we consider that the High Court was right in accepting .the evidence of respondent No. 2 on this point and rejecting the plea of the appellants that the withdrawal form of appellant No. 1 had been wrongly manoeuvred and had not been presented by him.

Lastly, we may take notice of the thre further allegations that the nomination paper of respondent No. 1 y; as, in fact, riot presented, on 20th January, 1967; secondly, that, if at all it was presented, it was not accompanied by a copy of the electoral roll showing that respondent No. 1 was entered as an elector in another constituency; and, thirdly, that it was not accompanied by a receipt showing the deposit of the security money as required by. law.

On all these points, there is the clear evidence of the Returning Officer as well as that of R.W. 3 who proposed the name of respondent No. 1 and who presented the nomination paper to the Returning Officer.

There is no reason at all to disbelieve their evidence on these points, particularly when their

evidence is also supported by the documents maintained in the office of the Returning Officer as well as i.n the Sub-Treasury.

There is further the fact that no direct evidence has been led on behalf of the appellants to show that the nomination paper of respondent No. 1 was presented at some other time after the expiry of the date fixed for nomination and that, when so presented at the later stage, it was not accompanied by the two neces sary documents.

These pleas taken for challenging the validity of the election of respondent No. 1 have also, therefore, been rightly rejected by the High Court.

The appeal fails and is dismissed with costs. There will be one set of costs for hearing.

V.P.S.

Appeal dismissed.

KHAJE KHANAVAR KHADERKHAN JIUSSAJN KHAN A

AND OTHERS

KHAJE KHANAVAR KHADERKHAN HUSSAIN KHAN AND OTHERS

SIDDAV ANBALLI NUALINGAPPA & ANR

M. SHELAT

Art. 173(a)

Practice and Procedure-Representation of the People Act

s. 116A

Practice and Procedure-Representation of the People Act

Practice and Procedure-Representation of the People Act

Code of Civil Procedure

Art. 113(a)

Art. 173(a)

Art. 173(a)

Shiggaon constituency

Pashupatl Nath Singh

Art. 173(a)

Art. 173(a)

Bagalkot

Art. 173(a)

Mysore Legislative Assembly

Art. 173(a)

India

Third Schedule

ClvIL APPELLATE JURISDICTION

ClvIL APPELLATE JURISDICTION: Civil Appeal No.

s. 116

Representation of the People Act, 1951

B. S. Patel

S. Paramila

R. B. Datar

A. K. Sen

S. S. Jara

M.

Veerappa

Shyamala Papp11

I.

Shyamala Papp11 and S. P. Nayar, for respondent No.

S. P. Nayar

Bhargava

section 1

the Representation of the People Act, 1951

the Representation of the People Act, 1951

High Court of Mysore

1 has been dismissed by the High Court of Mysore.

Dharwar

s. 34

Election Commission

Third Schedule

Article 173

Patil Puttappa

Parliament

Mahalinga Shetty

Hotti Peerasabnavar Chamensab Ghudusab

Nadaf Mohamad. Jafar Saheb

20th January, 1967

Joshi

shop of one Joshi, a car arrived from which P.W. 4.

H whereuoon Patil Puttappa

Mahalinga Shettv

Patil

Puttapim

Hanumanthagouda Ayyangouda Patil

Patil Puttappa

Mahalinga Shelly

Parliament

Puttappa

hini

22nd January, 1967

Bangalore

Shiggaon

Hubli

Sadashiv Shankarappa Settar

.Hubli

25th January, 1967

B. S. Patil

Art. 173

2 lst January, 1967

Art. 173

Kundagol

Shirahatti

Art. 173

Article 173

20th and 21st January, 1967

s. 36(2)(a)

Art. 173

21st January, 1967

A. K. Sen

Art. 173(a)

19th and 20th January, 1967

Sen

Art. 173

Patil

This claim was resisted by Mr. Patil 011 two grounds.

Art. 173

Third Schedule

Pashupati Nath Singh

Art. 173

Article 173(a)

Third Schedule

Article 17

Third Schedule

Art. 173(a)

Art. 173(a)

Elcsticn Commission

Art. 173(a)

Art. 173(a)

Constitution of India

Art. 173

Third Schedule

Cha:

nan Sab

Mohammad Jaffar Saheb

Hanumamhasa Pawar

Hanumanthappa Shivabasappa Hosamani

Gadigeppagouda Channabasanagouda Patil

Hanumanthagouda Ayyangouda Patil

Gurupadappa Basappa Mahalinga Shetty

Mohammad Jaffar

Patil Puttappa

Indira Gandhi

Indira Gandhi and the Chief Minister, respondent No.

Art. 173

Government of Mysore

Congress

Patil Puttappa

the Code of Civil Procedure

Assam High Court

C.P.C

R. M. Seshadri

Patil Puttapp_a

1 for his failure to examine Patil Puttapp_a as a witness.

20th

January

Vishal Karnataka

Mysore Pradesh Congress

23rd January, 1967

Vishal Karnatajca

Vishal Kamataka

Vishal Karnataka Office

Vishal Karnata.ka;

Patil

S.S. Sattar

Malral.inga Shetty

Patil l'uttappa


ltAILWA\' BOARl>, REPRESENTING TliE UNION or A

INDIA, NEW DELHI AND ANR •.

NIRANJAN SINGH

February 4, 1969

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

Constitution of India, Art. 226-Whether High Court, in exercise of certiorari jurisdiction can interfere with finding of disciplinary authority- Art. !9(l)(a), (b) (c) and (3)-lf violated by General Manager of Rail- ..

way prohibiting meetings of employees on , Railway premises.

Removal-Order of-Based on a numb.er of grounds -of which one not sustainable-If order liable to , be struck down.

The respondent Was a permanent employee of the Northern Railway and was served with a charge sheet in November, 1956, which levelled two charges against him. He was accused of having been instrumental in compelling the shut.<fown of an air comptessor and, in contravention of a direction given by the General Manager; Northern Railway, on June 19, 1956, of having addressed a number <If meetings within the Railway premises.

An enquiry committee after investigating the charges came to the conclusion that the first charge was not proved beyond all reasonable doubt but that the respondent was guilty of the second charge. The General Manager, who was the disciplinary authority, after examining the report of the cor:bmittee, accepted its findings on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well. After the issue of a show-cause notice to the respondent and the. rejection of his explanation, the General Manager directed, by an order of August 20,

1957, that the respondent be removed from service.

The respondent challenged the order of his removal by a writ petition.

The petition was allowed and an appeal to a Division Bench was dismissed.

The questions for decision in the appeal to this Court ivere' (i) whether the High Court was within its jurisdiction in the exercise of its powers under Art. 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge; (ii) whether the appellate court was right in its view that i'f an order of removal is based on number of grounds and one or more of those grounds are fotmd to be unsustainable, the order is liable to be struck down; and (iii} whether the direction issued by the General Manager on June 19, 1956 was violative of Art. 19(1)(a) to (c) and (3).

It was contended on behalf of the appellant that the rights guranteed under Art. 19(1)(a), (b) & (c) are inviolable and they cannot be interferred with except in. accordance with sub-articles 2, 3 & 4 of Art. 19; that the Railway workers had a right to assembly in any place they chose and cpuld express their views so long they did not disturb the work going on in the premises.

HELD : Allowing the appeal and dismissing the writ petition : (i) H The High Court exceeded its powers in interfering with the findings of the .

General Manager on the first charge. It was open to the General Manager to accept the evidence which the Enquiry Committee had rejected on the first charge and he was not bound by the conclusions reached by the com

RLY. BOARD V, NJRANJAN SINGH (Hegde, J.) 54&

mittec. On tho facts in the present case it could not be said that the ftnd. ing of the disciplinary authority was not supported by any evidence nor could it be said that no reasonable person could have reached such a find. ing.

Henee the conclusion reached by the disciplinary authority . must prevail and the High Court in the exercise of its certiorari jurisdiction could not have interferred with its conclusion. (552 A-CJ

Union of India v. H. C, Goel, [1964] 4 S.C.R. 718; Syed Yakoob v.

K. S. Radhakrf.>:hnan & Ors., (1964] 5 S.C.R. 64; relied pn.

(ii) There was no force in the contention that the punishment imposed could not be sustained if it was held that one of the two charges on the basis of which it was imposed, was unsustainable. Ilf the order in an enquiry under Art. 311 can be supported on any finding as substantial misdemeanour for which the punishment imposed can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed )Vith the authority in imposing the punishment in question [552 0]

State of Orissa v. Bidyabhan Mohapatra, [1962] Suppl. 1 S.C.R. 648; followed.

(iii) The General Manager's direction prohibiting the holding of meetings within the Railway premises was not violative of Art. 19(1).

The Northern Railway was the owner of the premises in '1, Uestion and was entitled to enjoy its property in the same manner as any pnvate individual subject to only such restriction as the law or the usage may place oo them. There is no 'fuiidamental right for any one to hold meetings in Government premises. Freedom of speech, freedom to assemble peac&- fully and the freedom to form Associations or Unions does not mean that these rights can be exercised by the citizen• in whatever place they please.

The exercise of those freedoms will come to an end as soon as the right of some one else to hold rus prop<; rty intervenes.

Such a limitation is inherent in the exercise of those nghts. The validity elf that limitation is not to be judged by the tests prescribed by Sub-Arts. (2) and (3) of Art.

19, (554 D]

Marsh v. Alabama, 90 Law &In. p. 265; Tucker v. State of Texas. 90 Law &In. p. 274); distinguished.

CML APPELLATE JURISDICTION : Civil Appeal No. 1206 of 1966.

Appeal from the judgment and order dated January 14, 1963 of the Punjab High Court in Letters Patent Appeal No. 36-D of

196:2.

G. R. Rajagopaul, A. S. Nambiar and S. P. Nayar:, for the appellants.

R. K. Garg ·~ S. C. Agarwal, for the respondent.

The I udgment of the Court was delivered by Begde, J. This appeal was brought after obtaining from the High-Court a certificate uner Art. 13~ and ! ~3(l)(c) oft~~ Co~ stitution.

Before formulating the pomts ansmg for dec1S1on, 1t would be convenient to set out the necessary facts.

. The respondent was holding a permanent post in the Northern Railway.

He was a Trade Union worker.

On November 7, 195.6 a c?arge-sheet was served on him levelling two charges agamst him.

Under the first charge, he was accused of having been instrumental in compelling the air compressor being shut down at about 8.15 a.m. on May 31, 1956. Under the second charge he was accused of having contravened the direction given by the General Manager, Northern Railway as per his letter No. 961/E/O(Evi) dated June 19, 1956 by addressing meetings within the railway premises on June 23, 1956, June 25, 1956, July 24, 1956, July 25, 1956 and July 27, 1956. On these charges he was called upon to show-cause why he should not be removed from service under Rule 1708 of the Indian Railway Establishment Code Vol. I or punished with any lesser penalties specified in Rule 1702. After receiving his explanation an enquiry committee consisting of three officers was appointed to enquire into the charges. The said committee came to the conclusion that the first charge was not proved beyond all reasonable doubt but he was guilty of the second charge. The Disciplinary Authority i.e. the General Manager remitted the case back to the enquiry committee for submitting a fresh report after examining the witnesses* mentioned in his order.

Even after examining those witnesses the enquiry committee adhered to its earlier conclusions.

After examining the reports. of the enquiry committee, the General Manager as per his order of May 25, 1957 accepted its finding on the second charge but differing from its conclusion on the first charge tentatively came to the conclusion that the respondent was guilty of that charge as well.

As a result thereof he ordered the issue of a notice to the respondent to show-cause why he should not be removed from service. The respondent submitted his explanation to the show-cause notice. The General Manager did not accept his explanation and by his order of August 20, 1957 he directed that the respondent be removed from service. The respondent challenged that decision before the High Court of Punjab by means of a :writ petition under Art. 226 of the Constitution.

The single judge of the High Court who heard the petition opined that the General Manager was not right in holding on the material on record that the first charge is established and on the second charge he held that the General Man ager' s direction as per his letter of June 19, 1956 is void as being violative of Art. 19(1) of the Constitution.

On appeal the appellate court upheld the conclusion of the learned single judge on the first charge but it was unable to accept his finding that the order of the General Manager of June 19, 1956 was violative of Art. 19(1) of the Constitution. All the same it affirmed the decision of the learned single judge with these observations : ''It is by now a generally recognised principle that where an order such as an order of detention or removal

llLY. BOARD V, NlllANJAN SINGH (Hegde, J.) 551

from service is based on a number of grounds, and one or more of these grounds disappear it becomes difficult to uphold the order when it is not clear to what extent it was based on the ound found to be bad."

The findings of the learned single judge as well as the judges of the appellate court were challenged before us by the appellant.

It was urged on its behalf that the finding of the General Manager on the first charge being a finding of fact, the same not having been held either not supported by any evidence or as perverse, it was not open to the High Court to review the evidence afresh and come to a conclusion of its own. It was further urged on its behalf that the opinion of the Appellate Court that if one of the several charges on the basis of which a punishment is imposed is held to be unsustainable, the punishment imposed should be set aside as it is not known whether the authority in question would have imposed the impugned punishment without that charge having been established, does not represent the correct J_egal position as epounded by this Court. The learned Counsel for the respondent not only supported the conclusions of the appellate court, he also strongly commended for our acceptane the finding of the learned single judge that General Manager's direction contained in his letter of June 19, 1956 was violative of Art. 19(1)

(a) to (c).

The questions. that arise for decision in this appeal are (!) whether the High Court was within its jurisdiction in the exercise of its powers under Art. 226 of the Constitution to set aside the conclusion reached by the General Manager on the first charge,

(2) whether the direction issued by the General Manager on June 19, 1956 is violative of Art. 19(1) a to (c) and (3) whether the appellate court was right in its view that if an order of removal is based on number of .grounds and one or more of those grounds are found to be unsustainable, the order is liable to be struck down.

Now coming to the first charge, we may first set out the undisputed facts.

On May 31, 1956, the Union of which the respondent was the Vice-President declared a token strike.

The strike in question was declared by the respondent and he took a leading part in it. During the time of the strike the compressor was not worked. The enquiry committee came to the conclusion and that conclusion was neither challenged before the High Court nor before this Court that the compressor driver must have started the compressor in the East Compressor House at 8-00 hrs. and there must have been certain circumstances which made the driver to shut it off at 8-15 hrs. The only question for decision is whether the respondent was responsible for shutting it off. Two witnesses namely Subrati, the compressor Driver and Rameshwar. his Assistant emphatically stated before the enquiry committee

that it was the respondent who led a group of strikers and compelled them to close down the eompressor. The enquiry committee felt that their evidence cannot be . accepted at its face value as they were not able to name any other person in the group. But the General Manager did not agree with the enquiry on that point.

He fully accepted their evidence.

It was open to the General Manager to do so. He was not bound by the conclusions reached by the enquiry committee, see Union of India v. H. C. Goel(').

This is not a case where it can be said that the finding of the Disciplinary Authority is not supported by any evidence nor can it be said that no reasonable person could have reached such a finding. Hence the conclusion reached by the Disciplinary Autho- .. rity should prevail and the High Court in the exercise of its Certiorari jurisdiction could not have interfered with its conclusion, see Syed Yakoob v. K. S. Radhakrishnan and Ors.( 2 ).

It was next contended that in arriving at his conclusion on the first charge the General Manager had relied on the hearsay evidence given by De Mellow and hence his conclusion is vitiated.

The evidence of the witnesses examined during the enquiry is not before us.

Hence it is not possible to accept the contention that De Mellow's evidence was hearsay. In this view it is not necessary to go into the question whether hearsay evidence can be relied on at all in an enquiry under Art. 311. and if so within what limits.

Some of the inferences drawn by the General Manager were objected to by the larned Counsel for the respondent. They appear to be inferences of fact, evidently drawn from the material before him and ns such cannot be properly objected to. It was open to him to draw those inferences.

For the reasons mentioned above, we hold that thel High Court exceeded its powers in interfering with the finding of the General Manager on the first charge.

Before we take up for consideration point No. 2 formulated above, it would be convenient to deal with point No. 3. It was not disputed before us that the first charge levelled against the respondent is a serious charge and it would have been appropriate for the General Manager to remove the respondent from service on the basis of his finding on that charge. But we were told that we cannot assume that the General Manager would have inflicited that punishment solely on the basis of that charge and consequently we cannot sustain the punishment imposed if we hold that one of the two charges on the basis of which it was imposed is unsustainable. This contention cannot be accepted in view of the decision of this Court in State of Orissa v.

Bidyabhan Mohapatrp(3) wherein it was held that if the order in an enquiry under Art. 31 I can be supported on any finding as substantial mis-

(3) [1962] Supp, I S.C.R. 648.

demeanour for which the punishment imposed can lawfully be imposed it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question.

Now we come to the second charge. In order to examine the contentions of Mr. Garg, the learned Counsel for the respondent relating to that charge, it is necessary to set out the circular issued by the General Manager on June 19, 1956. That was a circular issued to all the heads of the departments.

It reads : "It has been brought to notice that in a number of cases railway employees have held meetings inside railway premises such as inside workshops, inside stores depots and within office compounds. It may be pointed out that this practice is extremely objectionable and has to be stopped forthwith. All staff may be warned that if any one of them is found organising or attending a meeting inside railway premises or at places of work, he will render himself liable to severe disciplinary action as such action on his part will amount to misconduct arising out of violation of administrative insructions.

Meetings of workers can be held on open grounds away from places of work with the permission of the railway authorities concerned if such open grounds fall within railway boundary.

You are to note these instructions very carefully and to ensure their strict compliance in future.

Please acknowledge receipt."

The direction with which we are concerned in this appeal is that which prohibits the holding of meetings within the railway premises including open grounds forming part of those premises.

That direction does not deprive the workers any of the freedoms guaranteed to them under Art. 19(1). It merely prohibits them from exercising any of them within the railway premises. What is prohibited is the holding of meetings for any purpose within the railway premises.

The question is whether such a direction is violative of Art. 19(1) ? In the instant case we are concerned with the meetings held outside the main time office and it was not denied that that place formed part of the railway premises.

It was strenuously urged on behalf of the respondent that the rights guaranteed under Art. 19(l)(a), (b) and (c) are inviolable and they cannot be interfered with excepting in accordance with sub-Arts. 2, 3 and 4 of the said Art. According to Mr. Garg the railwav workers have a right to assemble in any place they choose

1111d give expression to their views so long as they do not disturb the work going on in the premises and that right is guaranteed to them under our Constitution.

It was not disputed that the Northern Railway is the owner of the premises in question. The fact that the Indian Railways are State Undertakings does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on them. Hence unless it is shown that either under law or because of some usage the railway servants have a right to holdtheir meetings in railway premises, we see no basis for objecting to the direction given by the_ General Manager. There is no fundamental right for anyone to hold meetings in government premises. If it is otherwise there is bound to be chaos in our offices. The fact that those who work in a public office earl go there does not confer on them the right of holdfug a meeting at that office even if it be , the most convenient place to do so. . -~-

It is true that the freedoms guaranteed under our Constitution . are very valuable freedoms and thjs Court would resist abridging the ambit of those freedoms except to the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to forrii. associations or unions does not mean that they can exercise those. freedoms in whatever place they please. _ The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those rights. The validity of that !imitation is not to be judged by the tests prescribed by Sub-Arts. (2) and (3) of Art. 19. In other words the contents of the freedoms guaranteed under els. (a), (b) and (c), the only freedoms with which we are concerned in this appeal, do not include the right to exercise them in the properties belnging to others. If Mr. Garg is right in his contentions then a citizen of this country in the exercise of his right under els. (d) and (e)' of Art. 19(1) could move about freely in a public office or even reside there unless there exists_-some Jaw imposing reasonable restrictions on the exercise of those rights. _ ·

In support of his contention Mr. Garg strongly relied on the decisions of the Supreme Court of United States of America in Marsh v. A/abama(1) and Tucker v. State of Texas(') Tuckers . case was decided on the basis of the rule lrud down in Marsh's case. - Hence it is not necessary to consider _it separately. In Marsh's case the Supreme Court laid down that the constitutional guarantee$ of freedoms of s and of religion precludes the enforcement against one who undertook to distribute religious literature on a street of a company-owned town, contrary to the wishes of the town's management, of a state statute makin" it a crime to enter or remain on the premises of another after 'having been

(1) 90, Law ed. p. 265.

(2) 90, Law ea. p. 274.

warned not to do so. In order to appreciate this decision it is ne=ary to bear in mind the facts of the case.

The appellant therein was a Jehovah's Witness who came into the sidewalk of a private town situate near the post office and undertook to distribute religious literature. In the store the corporation had posted a notice which read as follows :-

"This Is Private Property and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted."

The appellant was warned that she should not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined.

The deputy sheriff arrested her and she was charged in the state court for violating the law.

The town in question is described in the judgment thus :

"The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Ship building Corporation. Except for that it has all the characteristics of any other American town.

The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.

A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six c:miers deliver mail to the people of Chickasaw and the adjacent area.

The town and the Sllfl'Ounding neighbourhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet.

There is nothing to stop highway traffic from coming into the business block and upon arrival a traveller may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish

them from any other town and shopping centre except the fact that the title to the property belongs to a private corporation." From the .above description it is clear that the roads and sidewalks in that town had been dedicated for public use. It is in that context Justice Black observed :

"The more an owner, for his advantage, opens up his property for use by the public in general, the more do 'his rights become circumscribed by the statutory and constitutional rights of those who use it." The learned Judge further observed :

"We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a 'business block' in the town and a street and sidewalk on that business block ....

As we have heretofore stated, the town of Chickasaw does not function differently from any other town.

The "business block" serves as the community shopping centre and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the constitutional guarantees and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution." In our opinion the rule laid down in Marsh's case does not apply to the fact~ of this case. The premises with which we are concerned in this appeal unlike the roads and sidewalks of Chickasaw town were not open for use of the general public. They were intended for certain specified public purposes. They could not be used for any other purpose except with the permission of the concerned authority.

Neither the language of Art. 19(1) nor the purpose behind it lend support to the contentions of Mr. Garg. On the other hand their acceptance might lead to the confusion in public offices.

Hence we are unable to accept them.

In the result the appeal is allowed and the writ petition dismissed but in the circumstances of the case we direct the parties to bear their own costs throughout.

R.K.P.S.

Appeal allowed.

RAILWAY BOARD, REPRESENTING THE UNION OF INDIA, NEW DELHI AND ANR

NIRANJAN SINGH

February 4, 1969

S. M. SIKRI

R. S. BACHAWAT

K. S. HEGDE, JJ

Constitution of India

Art. 226

August 20,

1957

Art. 226

June 19, 1956

Art. 19(1)(a)

Art. 19(1)(a)

articles 2, 3 & 4

Art. 19

RLY. BOARD

NJRANJAN SINGH

Hegde

[1964] 4 S.C.R. 718

(1964] 5 S.C.R. 64

Art. 311

Art. 19(1)

Northern Railway

Art.

19

R. Rajagopaul

A. S. Nambiar

S. P. Nayar

R. K. Garg

S. C. Agarwal

Begde

Art. 13

November 7, 195.6

May 31, 1956

June 23, 1956

June 25, 1956

July 24, 1956

July 25, 1956

July 27, 1956

May 25, 1957

August 20, 1957

High Court of Punjab

Art. 226

Art. 19(1)

Art. 19(1)

NlllANJAN SINGH

Art. 19(1)

Art. 226

Art. 19(1)

Subrati

Rameshwar

De Mellow

Art. 311

Art. 31

Garg

Art. 19(1)

Art. 19(1)

Art. 19(l)(a)

Arts. 2, 3 and 4

Indian Railways

Art. 19

Art. 19(1)

Marsh

Supreme Court

Mobile

Gulf Ship building Corporation

Mobile County Sheriff

United States

Chickasaw

Black

Chickasaw town

Art. 19(1)