BHANU KUMAR SHASTRI

MOHAN LAL SUKHADIA & ORS.

January 22, 1971

[G. K. MITTER AND A. N. RAY, JJ.]

The Rtpresenration of the People Act (43 of 1951), ss. 116A, 116C and 123( l)~If provisions of 0.42, r. 22 of Civil Procedure Code are <pplicable to appeal to Supreme Court under s. ll 6C.

Chief Minister of State a candidate-Amelioration of public grievances C bj his orders-When arnoun(s to corrupt practice.

The first respondent was successful in the election to the State Legislative Assembly.

At the time of election he was 1he Chief Minister of the State.

The election was challenged by the petitioner on the allegations that by ordering the covering of a nallah, the construction of a road, the installation of water iaps and rhe grant of pattas to the inhabitants of a colony for construction of houses, the first respondent made D a bargain with the people for votes and thus committed cort'upt practice as defined in s. 123(1) of the Representation of the People Act, 1951.

Though the High Court found certain facts against the first respondent, it decided all the issues in his favour and dismissed the election petition.

In appeal to !his Court,

HELD : (I) On the evidence, oral and documentary, the findings E of fact found against the first respondent by the High Couh should --be reversed, even though no appeal was preferred by the first l:esponde.ilt.

[541 G-H; 542 HJ

(2) When it appears that the High Court had not taken into con side!'lltion the entire documentary and oral evidence in arriving at a finding and that the High Court had overlooked such important and F crucial evidence, this Court is justified in deciding in favour of the respondent, after considering that evidence by reversing the findings of fact arrived at by the High Court. [542 G-H; 543 A-Bl_

(3) Under s. 1!6C of the Act, the procedure in an appeal under s. 116A to tliis Court is that subject to the provisions of the Act and rules, if any, made thereunder, every appeal shall be heard and deter mined by this Court as nearly as may be in accordance with the pr<>'- G cedure_ applicable to the hearing and determination of an appeal from the final order passed by a High Court in the exerdse of tis original jurisdiction and the provisions of the Code of Civil Procedure and the rules of the Court shall, as far as possible, apply in relation to such appeal.

There are no rules of this Court, -and the provisions contained in 0.41, r. 22, C.P.C., are attracted with the result that the respondent may support the decision of the High Court even on any ground decided against him, without preferring an appeal. [542 B-0] H

Ramanbhai Asht:.1bai Patel v. Dabhi Ajitkumar Fulsinji, [1965] I S.C.R. 712 and T. N. Angami v. Smt. Ravalu alias Renu M. Shai:r.a, C.A.

No. 1125/ 1970 dt_. 21.1.1971, followed. ·

( 4) Ordinarily amelioration of grievances of the public is innocuous. and cannot be construed against a candidate who is a Minister. If, however, there is evidence to indicate that any candidate at the election abused his power and position as a Minister in the Government by utilising public revenues for conferring advantage or benefit on a particular group of people for the purpose of .obtaining their votes, different considerations ·

will arise and it may be held to be a corrupt practice within the meaning of s. 123(1) of the Act. [544 D-FJ

In the present case, in all the instances relied upon by the appellant the evidence showed that there were long standing public grievances and the Government had from time to time made suggestions and recommendations for redress of the grievances and amelioration of the condition of the people.

It cannot be said that on the eve of election there was any sudden or spontaneous outburst of public activity in the shape of diverting money to win electors to the side of the first respondent by throwing baits or giving them any particular and specially favoured treatment. [544 G-H; 545 Al

Ghasi Ram v. Dal Singh, [1968] 3 S.C.R. 102 and Om Prabha Jain

D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1515 of

1968.

Appeal under S. 116-A of the Representation of the People- Act, 1951 from the judgment and order dated May 10, 1968 of

the Rajasthan High Court in Election Petition No. 8 of 1967.

A. S. Bobde, Guman Lal Lodha, J. S. Rastogi, Jagadisfr Pandya, M. L. Vaidya, D. V. Dani, S. S. Parekh, S. S. Khanduja and N. K. Shejwalkar, for the appellant. ·

S. Mohan Kumaramangalam, 1. L. Gobhil and K. Baldev Mehta, for respondent No. 1.

M. B. L. Bhargava, S. N. Bhargava and Sobhag Mal Jain, for respondent No. 4.

The Judgment of the Court was delivered by

Ray, J. This appeal is against the judgment of the Rajasthan High Court dated 10 May, 1968, dismissing the Election Petition

filed by the appellant against the respondent Mohan Lal Sukhadia.

The election of respondent Mohan Lal Sukhadia to the Rajasthan Legislative Assembly from the Udaipur City Assemblyc Constituency was challenged. The appellant contested 'the elec- H tion en Jan Sangh ticket. The respondent contested on Congress ticket.

The respondent was the Chief Minister of Rajasthan iat the time of the election. Respondent No. 2 Mohan Lal also contested the election but obtained only 1262 votes.

Respondents 4-918 Sup. C.J./71 .

Narendra Singh Lakheri and Girdhari Lal Sharma Nos. 3 and 4 respectively submitted their nomination papers but withdrew them.

For the purpose of this appeal we are concerned only with the res- , pondent Mohan Lal Sukhadia.

The polling took place on 15 February, 1967. The result was declared on 21 February,

1967. The respondent polled 24272 votes. The petitioner obtained 20841 votes. The respondent won by a margin of 3434 votes.

After the election the Congress 'Party was reduced to a minority. The respondent Sukhadia who was the Chief Minister tenodered his resignation.

On 13 March, 1967, the President's Rule was declared in Rajasthan, which was withdrawn after a.period of 44 days on 26 April, 1967. Thereafter the respondent Sukhadia again became .the Chief Minister.

The election petition was filed on 7 April, 1967. The respon- dent Sukhadia filed an application praying that certain allegations 'in the petition were vague and lacking in particulars required by Section 83 of the Representation of the People Act and, therefore, the allegations should be struck off. The High Court ordered the petitioner to file a detaibd reply giving full particulars in respect of each matter. On 29 May, 1967, the appellant furnished particulars. The High Court by orders dated 3/5/6 July, 1967 allowed the appellant to incorporate the said paticulars in the amended petition and further allowed the appellant to furnish more particulars in respect of other allegations of rrupt practices. On 19 . July, 1967, an amended Election Petition was filed incorporating the amendments allowed by the High Court. Thereafter written statements were filed and the parties filed applications under Rule 12 of the Election Rules for production of the documents.

Issues were framed on 14 August, 1967. The appellant filed a '.finally amended petition on 13 November, 1967.

The appellant examined 30 witnesses and the respondent sukhadia examined 46 witnesses.

The High Court decided all the issues in favour of the respondent Sukhadia a!lll dismissed the Election Petition but left tile

respondent to bear his own cost.

In the present appeal. we are concerned only with issues 1Nos. 3(a) and 4(a) Issues Nos. 3 and 4 are as follows:-

3 (a) Are the allegations made in paragraphs 8, 9, 10

and 11 of the Election Petition correct ?

3 (b) If so, did the respondent No. 1 coipmit !)le corrupt practice specified in Section 123 ( 1) or Section 123(2) of the Representation of the Peopie Act, 1951?

4(a) Are the allegations mentioned in paragraphs 12, 13, 14 and 15 of the Election Petition correct?

4(b) If so, did the Respondent No. 1 commit corrupt practice specified in Section 123 ( 4) of the Representation of the People Act, 1951?

C As to issue No. 3 based on par@.graphs 8, 9, 10 and 11 of the Election Petition, allegations of corrupt practice of bribery and undue influence concerned with the construction of certain works of general public utility to the inhabitants of Udaipur like the covering of Baluchistan Colony Nallah, construction of i:oad at Tekri, installation of water-taps in Udaipur City and the grant: of D Pattas to. the inhabitants of the Raigar Colony.

In the petition thr appellant made 7 4 allegations. At the trial 55 allegations were given up. In the present appeal the appellant pressed allegations firS'l abou.t Pattas in Raigar Colony; secondly, about roads in Tekri; thirdly, covering of Nallah in Baluchistan E Colony; fourthly, construction of water-taps; and fifthly, about Ex. 8-A as defamatory of the personal character and conduct of

the appellant.

The appeHant's case with regard to Raigar Colony is to be found in paragraph . 9 of the amended petition. The gist of the F allegation is as fol!ows :-

J'be respondent Sukhadia, his agents and other persons with the consent of Sukhadia promised the voters of the Raigar Colony, Udaipur at a meeting that he would get them Pattas issued at a nominal rate of Re. 1/- only for the construction .of their houses G and under this inducement he asked the Raigar voters to vote for him. Because of this inducement many Raigar voters voted for the respondent Sukhadia.. The respondent Sukhadia by his undue influence as Chief Minister got issued an order No. 66/5011 dated 10 February, 1967, from the Director, Social Welfare Department, Jaipur to grant Pattas to Raigars of Thakker Ba pa :U Colony for construction of houses at a nominal price of Re. 1/- for each patta. The respondent Sukhadia thus committed corrupt practice as defined under S. 123 (1) of the Representation of the People Act. Girdhari Lal, election agent of the respondent

Sukhadia arranged a meeting on 5 February, 1967 at the Raigar A Colony. About 100 persons gathered. The audience consisted of Harijans and Raigars. Prominent persons among these were Kalu Raigar, Shankar Harijan and Keshulal, the Secretary of the Raigar Colony. At this meeting the respondent Sukhadia said that he was managing Pattas of the land to be allotted to them for Re. 1/- each and he requested them to vote for him.

The High Court held that it had not been proved that the respondent Sukhadia made a bargain with the people of Raigar Colony on 5 February, 1967, that if they promised to vote for him he would arrange for the grant of Pattas to them at a nominal charge of Re. 11each Patta. c

The respondent Sukliadia stated that the order dated 5 February, 1967 (Ex. 271) passed by him and the order dated IO February; 1967 (Ex. 44) passed by the Director of Social Wel- :fure were in furtherance of the policy of the State Government announced as early as 27 April, 1959 (Ex. A-99) and further clarified by a subsequent order dated 26 February, 1962 (Ex.

D A-100). Neither in the original petition nor in the amended petition there was any mention of recovery of devefopment charges by the Urban Improvement Trust in connection with the issues of Pattas. Sukhadia's evidence was that the Urban Improvement Trust under the aforesaid orders of 1959 and 1962 were to issue Pattas after receiving the nominal charge of Re. 11per patta E from the inhabitants of the locality without insisting upon the recovery of development charges as condition precedent to the issue of Pattas.

The correspondence which was tendered in connection with the Raigar C-0lony indicates that from the year 1955 up to the F. month of July, 1967, certain controversies were going on between the Grihya Nirman Sahkari Samiti, Thakker Bapa Colony on the one hand and the City Improvement Committee and the Urban Improvement Trust on the other. The City Improvement Committee which was the predecessor of the Urban Improvement Trust from the beginning took the stand that Pattas in respect G of the houses .in occupation of the original inhabitants of the locality could not be issued unless they agreed to pay the price of the land and the development charges incurred by the City Improvement Committee. The Samiti on the other hand was anxious to see that the Pattas were granted without having to pay development charges because the people were poor. In Ex. A-99 H dated 27 April, 1959, the State Government made an order laying down the conditions on which the Pattas of the houses could be issued on payment of the nominal price of Re. 1/-. Thereafter

i;"

there was demand for issue of Pattas on payment of Rt;. 1/-. The Social Welfare Department wanted the order dated the 27 April,

1959 to be implemented and the City Improvement Committee in sisted on payment of development charges amounting to Rs. 14,828.94. The attitude of the Government as represented by the Social Welfare Department was that Pattas should be issued to the inhabitants of the locality in terms of 27 April, 1959 order on payment of Re. 1/- only per Patta. The Urban Improvement Trust and the. City Improvement Committee were equally insistent on payment of development charges.

Ex. 44 being a letter dated 10 February, 1967, issued by the Director of Social Welfare Department to the District Welfare Officer was the sheet-anchor on which the appellant relied.

A copy of that letter was sent to Keshulal, Secretary of the Grihya Nirman Sahakari Samiti, Thakker Bapa Colony. In that letter it was stated: " ...... it is submitted that there are directions from ihe Government on tl)e application of Keshulal. . . . . . that action be taken without delay in granting pattas to the residents of that Raigar Colorly, Udaipur, on payment at the rate of Re. 11-." This letter dated 10 February, 1967 (Ex. 44) seems to have had origin in 1959 and the di:cussions in the year 1966 as will appear from Ex. 268 being an application dated 29 December, 1966, addressed by Keshulal as Secretary of the Colony to the responde{lt Sukhadia as Chief Minister. There is a noting on that application in the hands of the Chid Minister to the effect "Secretary Social Welfare Officer to discuss the question of subsidy of 52 of the colonies and Pattas." That noting was on 28 December,

1966. On 31 December, 1966 the Secretary wrote as follows :

"Please speak immediately. D. S. (Deputy Secretary)

Social Welfare."

In this background it is unmistakable that the demand of Raigar Colony for Pattas was as old as a decade and the inhabitants of the colony saw the Chief Minister in December, 1966 and he asked the relevant department to look into the matter. Exs. 270 dated 21 January, 1967 and 271 dated 5 February, 1967 are office notes and order pursuant to the application sent by Keshulal in the month of December, 1966. The Director Social Welfare Department in Ex. 270 stated that ''Pattas were not granted because the development charges were not paid." /The Secretary, Social Welfare Department made a note on Ex. 270 that the Chief. Minister (Respondent Sukhadia) was going on tour on 24 January, 1967, therefore, there was no possibility of discussion in the near future. On 5 February, 1967, there is a noting by the Chief Minister on the file that the Raigar residents were ready to get Pattas on payment of Re. 11and after getting the amount

deposited action should be taken in getting the pattas granted to them and the Social Welfare Officer should be asked to pay personal attention to take action in the matter and other problems such as setting up industries, water arrangements etc. These documents show that Ex. 271 dated 5 February, 1967 was an office note on the file and did not have any independent existence.

The Chief Minister was asked to give his directions on Keshulal's application in the month of December, 1966. The Director of Social Welfare, therefore, on 10 February, 1967 wrote Ex. 44 "about grant of Pattas to the residents of the colony."

Under Section 123 (1) of the Representation of the People Act, 1951, bribery is mentioned as a corrupt practice and bribery is any gift offer promise by a candidate. . . . . . . . . . . . . . . . of an7 gratification to any person whosoever with the object of directly or indirectly inducing (b) .............. an elector to vote in an election."

The appellant's allegations were these. Girdhari Lal, election agent of respondent Sukhadia, arranged a meeting on 5 February, 1967 at Raigar Colony, 100 persons gathered. The audience consisted of Harijans and Raigars. The respondent Sukhadia at that meeting said that he was managing pattas of the lands allotted to Raigars and Harijans for Re. 1/ - each and requested them to vote for hir.:. These particulars of the meeting were furnished by way of amendment. Apart from the baldness of allegations as to bargain for votes, the oral evidence adduced on behalf of the appellant was that of P.W. 4 Lakshmi Narain and P.W. 12 Kalu Ram. It is significant that Shankar Harijan and Keshuial, who were mentioned by the appellant as having been present at the meeting were not examined. Kalu Ram was a member elected to• the Municipal Council, Udaipur on Jan Sangh ticket.

Lakshmi Narain was neither a Harijan nor <1 Raigar. The appellant. alleged that the audience consisted of Harijans and Raigars.

Lakshmi Narain said that when the respondent Sukhadia began addressing a meeting a Harijan and a Raigar are stated to have stood up and mentioned that the Urban Improvement Trust was not permitting them to build an upper storey on the ground that they !lad not got pattas and respondent Sukhadia is supposed to have said that he would get pattas prepared and asked them to vote.

The question of building 'the second storey was nowhere to be found in the allegations in the petition.

Kalu Ram said nothing about the alleged bargain for votes.

On the contrary, Kalu Ram said that he did not remember to have heard any conversation and he did not state anything about pattas being prepared from Jaipur and being sent to Udaipur before the polling date, though Lakshmi Narain deposed to that effect. If

BHANU KUMAR V, :f, IOHAN LAL (Ray, J.) 529

the Urban Improvement Trust, Udaipur was the authority for issuing pattas it is unbelievable that the respondent though Chief Minister of the State would make a promise for getting the pattas prepared at Jaipur and send them to Udaipur. Lakshmi Narain said that he was taken by Kalu Ram to the appellant 5 or 6 months after the election.

Th.e appellant then asked Lakshmi Narain whether parchas (leaflets) had been distributed. Lakshmi Narain is supposed to have showed a parcha Ex. 8-A whereupoD

the ap])ellant asked Lakshmi Narain if the latter could give evidence in court about distribution of Ex. 8-A. Even at that time Lakshmi Narain did not utter a word about the meeting on 5 Feb1uary, 1967 and far less of any bargain by respond.ent Sukhadia for votes at the election. Lakshmi Narain was an interested witness because he brought Ex. 8-A of his own accord, though he was not summoned 'to produce any document in Court.

Kaid Ram the other wHness admitted that as early as 1959, the Rajasthan Government passed an order that pattas be issued to the resid.ents of Raigar Colony on a payment of Re. 1/-. This. was merely implementing what the Government had decided in

1959. The respondent's office note .on 5 February, 1967, was nothing new and there was no temptation offered by him.

The tour programme of the respondent Sukhadia was exhibited i.e. Ex. A-116. Between 3.00 p.m. and 5.00.p.m. on 5 February, 1967, respondent Sukhadia spoke at a meeting of Sindhi Samaj at 4.00 p.m. That statement of Sukhadia was put to him in crossexamination to be correct. Girdhari Lal, the agent of Sukhadia, also spoke of the correctness of the tour programme of Sukhadia and no challenge was made. Roop Kumar P.W. 3 also spoke of the meeting at Sindhi Samaj at about 4.00 p.m. and he was not cross-examined. Nowhere in the election petition the appellant mentioned the time of the meeting at.Raigar Colony on 5 February, 1967. In the tour programme of the respondent Sukhadia it will appear that he met the Kerala Samai on 5 February, 1967 between 3.30 p.m. and 4.00 p.m. at Vidhya Peeth.

Between 4.00 and 5.00 p.m. he was at Sindhi Samaj and between 5.00 and 5.30 p.m. he met Gujrati Samaj near Fateh School. The respondent Sukhadia held a meeting of the Sindhi Samai at Saletia Ground behind the Vidhya Peeth on 5 February, 1967 at 4.00 p.m. The police record contained in the file which was summoned' at the instance of the appellant contained a copy of the tour programme of respondent Sukhadia which tallied with the tour programmes produced by the respondent Sukhadia and orally deposed to by Sukhadia and witnesses on his behalf.

Ex. 109 was a copy of the cyclostyled address presented to the respondent Sukhadia on behalf of Sindhi Refugees at their meeting on 5 February, 1967. This is an additional ground to

;<; upport the respondent Sukhadia's evidence.

The oral evidence -Of Lakshmi Narain and Kalu Ram is unworthy of belief. The

docuµie.ntary evidence fortifies th~ oral evidence of resj>ondent Sadia that there was no meetmg of Raigars and Harijans at Uda1pur on 5 February, 1967.

The assertion made by the appellant that the order dated 5 Feb.ruary, 1967 was passed by the respondent Sukhadia on the :stauonery of the Chief Minister is baseless.

The original belies that case. On the contrary the order dated 5 February, 1967 is nothing but a noting by the Chief Minister on the file which had been tarted pusuant to fre order of the Government in the year 1959 and occasioned more so because of the application made by Keshtilal in the month of December, 1966.

The High Court rightly rejected the oral evidence of bargain and characterised the evidence on behalf of the appellant as being wholly "concocted and fabricated."

' Counsel for the appellant submitted that the respondent Sukhadia also made an order for remission of development charges.

The documents relied on by the appellant do not support any such charge. This is a new case in this Court. There is no foundation for it in the pleadings. This case was not made in the High Court.

Therefor.~, this case cannot be allowed to be made at this stage.

The second corrupt practice on which the appellant relied is

to be found in paragraph 8 of the petition as a1ll'nded. Broadly stated the appellant's allegations were that the respondent Sukhadia ordered Public Works Department (P.W.D.) to construct a road at Tekri though it was a municipal area and P.W'.D. had no jurisdiction: and further that the respondent held a meeting on 5 Febru- F ary, 1967, and during his speech said that he was arranging for construction of roads and installation of water-taps and requested the people to vote for him. This part of the appellant's case concerns an area called Tekri. There was a new railway station and a yard was constructed that necessitated new road linking police lines to a place called Salumbar road junction. P.W.D.

G undertook to construct a road and when constructed that woulq have made a thoroughfare through the Police Lines from the Railway Station to the Block Office. The police authorities objected.

The Banjara Samiti which took up the cause complained about the obstruction by the police.

Work was held up. This was in the year 1965-66. When the Police Lines were constructed a short H link route to Tekri village was closed: Therefore, it was decided io construct an approach road to Tekri. When the thoroughfare through

1 the Police Lines was abandoned in the year 1966, the

.• c

Executive Engineer took a decision to upgrade a part of the road and to use tarred road to make a thoroughfare via village Tekri to give a by-pass to Police Lines. Tekri village was situated to the East of Police Lines at Udaipur. The new railway station was to the North-West of the Jail. The Jail was also to the North- West of the Police Lines. The proposed road was from the Railway Station to Tekri village and then beyond the Police Lines to a point to the Block Office from the North to the South. Tekri village was to the East of the proposed road.

In the original petition the appellant alleged that the Executive Engineer Chhail Behari Mathur canvassed votes to support respondent Sukhadia. In the amended petition the appellant alleged that Chhail Beha!'i Mathur at thl: instance of the respondent Sukhadia passed orc!ers for construction of roads. The appellant in his oral evidence said he had no personal knowledge and was indefinite as to which road his allegation related but that it related to a road whih ran through Tekri village. Madan Lal, Chairman of the Municipality and a witness on behalf of the appellant could not point any road construction by the Municipality after 28 December, 1959, when Tekri~ was included in it. Two other witnesses Phoola P.W. 25 and Madan Lal P.W. 28 said that the road at Tekri was completed two or three days before the polling. The High Court disbelieved both of them.

There are important exhibits as to Tekri road construction.

These are Contractor's Agreement Ex.A/128 dated 10 February, 1967, Measurement Book Ex.A1129 and Running Bill Ex. 70, all for earth work. Ex. A1130 dated 1 April, 1967 and Ex. All31 are the Agreement :ind Measurement Book respectively and both are for soling. The work was described "special repairs to approach road to Tekri." On behalf of the appellant it was emphasized that the change was significant.

Ex.A/125 was the Agreement dated 3 September 1965 for oonsmiction of road

by Baniara Samiti in the year 1965 Ex. A/126 is a letter of complaint by the Banjara Samiti against the hindrance by the Police. These documents Al 125 and Al 126 both indicate that when it was intended to have a thoroughfare through the Police Line> to Jaisamand Board some criticism was made as to the name given-"Construction of Road connecting Police Lines to J aisamand Road" in the file of the year 1965 but when work commenced it was describe~ as "Special repairs approach rod to Tekri." In Ex. A/ 127 dated 10 April, 1967 bdng estimate for the road it will appear that whon the short link to Tekri village disappeared in Police Lines it was intended to build "approach road to Tekri" which was shown on a plan Ex. 80. When the thoroughfare through the Police Lines was abandoned because of

objection by the Police, it was decided to by-pass the Police A Lines and upgrade the entire road from the Railway Station to the Block Office. The name was amended as "road from railway crossing to join Salumber road junction via Tekri village to give by-pass to Police Lines." The plan Ex. 80 prows that. The construction, whatever the name of the road was, remained the same road. The name is, therefore, of no moment.

The High Court held that there was no tender and that the work was split to restrict the contract to the competence of the Assistant EnJljineer. Rule 369 of the Financial and Account Rules states that it is not the intention to prevent the officers from giving out to different contractors a number oficontracts relating to one. work even though such -work may be estimated to cost C more than the amount up to which they are empowered to accept tenders. The total cost of the road wa~ approximately Rs. 20,0001for material and labour. The 8th Running Bill was for Rs. 9,473.00 and the 9th Running Bill was for Rs. l,025.00.

Both the Running Bills were pursuant to Agreement No. 15 of 1966-67 and these Bills were passed in the months of April and D May, 196'7. Tuere was a standing yearly contract to supply stones and ballast. The total labour cost for earth work, soling, consolidation of stone ballast was Rs, 7,840.75 as will appear from Ex. A/128, and Ex. A/13(} (vouchers Nos. 63 and 44) and other vouchers. It is, therefore, correct to hold that the amounf spent was within the limit and these were valid pi.ece-work agreements E and all Bills, Vouchers and Measurement Books indicate that there was no irregularity.

The High Court made some comments as to production of record for Tekri village. It stated that the record was produced after great delay. The criticism is not justified. The requisition for record was made on 15 November, 1967 and the record was sent up on 15 December, 1967. An application for summoning documents was made by the appellant on 12 Aug11, st, 1967 and an order was made on 14 August, 1967 that the appellant should re" quisition these from the Public Works Department and the appellant made the requisition on 15 November, 1967. On 8 September, 1967 the respondent had also made a requisition ferihe iile relating to Tekri. The Executive Engineer made a slight confusion between the two requisitions.

In any event the -entire record was before the Court and none of the parties suffered from any non-production.

The High Court held that Ex. Al 130 being the agreement for soling was entered into on l April, 1967 and was a fictitious document because soling was done on 14 February, 1967 and not after 1 April, 1967. It is also important to note that entry in

' '

log book Ex. 68 dated 14 February, 1967 speaks of soling and pressing by road roller over 300 feet in length on 14 February,

1967. The relevant vouchers show 1that 18275 cft. ballast was spread. The ballast was 12 feet wide and 4! inches deep. The total length of the road was 4000 feet upto Tekri village.

Se- condly, the relevant vouchers show that 16,722 cft. soling was laici. Soling was done .12 feet wide and six inches deep. That

worked out a total road length of 2,287 feet.

Thus soling was not done over 1,113 feet in length. Thirdly, earth , wot~ according to the vouchers was 287 41 cft. of which 21050 cft. was carried away and rest of the excavated stuff was pressed. Some 1,281 feet long road length contained material which was excavated locally. Work started near the Jail to avoid the inconvenience to traffic on election day caused by the dug up gravel road. That is why Ex. 68 dated 14 February, 1967 is explicable as to soling for about 300 feet on that day and Ex. A/130 the agreement became effective as from 1 April, 1967. Therefore, the High Court wrongly held' that the date 1 April, 1967 on Ex. A/130 was fictitious because soling was done oil 14 February, 1967 as will appear from Ex. 68. The judgment totally overlooked that on 14 February, 1967 soling was pressed by road-roller to the extent of 300 feet. The total distance of the road from Jail to Tekri village was 3389 ft. Out.of this length 3000 ft. soling was pressed on 12 April, 1967. That is proved by Ex. 67 Jog-book entry dated 12 April, 1967.. Details of road. roller work given in Ex. 67 show that the ehne worked on the road for about 3! days for pressing soling and consolidating ballast.

The relevant Financial and Accounts Rules Nos. 330, 351 and 369 indicate that the officers could give to different contractors a number of contracts relating to one work even though such work might be estimated to cost more than the amount up to which they are empowered to accept the tenders and a distinc tion is made between Jliece-work and contract work. Piece-work is that for which only a rate is agreed upon without reference t<>' the total quantity to be done. Work below Rs. 2500/- in value is termed as petty-work. Exs. A/128 and Ex. A/130 , would come in the category of petty-work. Petty-work did not require .estimate nor tenders according to Rules 330 and 351 respcctl. vely. The Tekri road was constructed Ul\der special repairs programme.

The High Court held that the construction of the road at Tekri was in contravention of section 72 of the Rajasthan Urban Improvement Act.

This point was not raised in the pleadings.

Section 72 of the said Rajasthan Act speaks of restriction on improvement in certain areas after the coming into otieration in

any area of a master plan or notification of the sanction of a A scheme. The scheme is .not in evidence. The evidence about Hiran Nagri Scheme does not prove that Tekri road was constructed in contravention of any scheme. Hiran Nagri scheme Ex. 78 is divided into 14 sectors. Tekri does not fall in any 011e of them. It is in evidence that on 31 January, 1967 the Advisory Council met for 'Preparation of a master plan. Section 2 ( 1) ( i) B of the said Rajasthan Actspeaks of amenity as including a road and section 2(1) (vi) speaks of improvement meaning operations over or under land. A road cannot be an improvement and therefore section 72 of the Act may not apply. These matters appear to be beside the principal point for consideration as to whether there was any meeting and whether the respondent c Sukhadia told the voters who were mostly Gujars that if they did not -vote for th.e appellant then the Kachha road in their locality would never be metalled.

The High Court held that there was no evidence that it was the respondent Sukhadia who got the work on Tekri road started by Chhail Behari Mathur. The High Court further held that there was no evidence of bargain for voting at the election. The witnesses Phoola P.W. 25 and Madan Lal P.W. 28 who were examined to prove that the respondent made a bargain with the people of Tekri village that they would vote for him and he would .get a road constructed in Tekri village were disbelieved by the High Court. The entire evidence 'has been examined by the High Court and there was no ei!dence of bargain.

That find,- •. ~, ing is correct and we do not find any reason to take a contraJiY ' view. The various records about the construction of Tekri road indicate that this was a long standing grievance. If a roller was used on the date of the election that should not be interpreted to mean that the Chief Minister was utilising his position to obtain votes. Such a view would suspend and paralyse normal activities of the State. We agree with the High Court that thre was no corrupt practice.

With regard to the construction work at Tekri; counsel for the appellant emphasized three features, namely, that this was not the respondent Sukhadia's portfolio; secondly, that the cons !ruction work was in breach of law, that the Urban Improvement Trust should have done work; and thirdly. work commenced immediately after the visit of respondent Sukhadia and it was completed. before the polling date without estimates, without sanction and wihout funds. These three features were said in combination with the oral evidence of Phoola P.W. 25 and Madan Lal P.W. 28 to be full and complete evidence of the election bargain of respondent Sukhadia to obtain votes.

He have earlier referred to the agreement for earth-work for construction of road at Tekri

village.

The work continued up to the month of May, 1967 ..

The road had been planned as early as 1966. It is not correct to say that there was no sanction for the work. There was standing yearly contract of supply of stones and ballast. Earth-work was done under different agreements.

Measurement-books and vouchers have been produced and the total value of the work was calculated to cost R.s. 20,0001-.

Approximately Rs. 18,000/ • was spent.

There were two piece-work agreements .Ex. Al 128 and Ex. A/130. In addition there were items of petty-work.

Petty-work did not .require any estimate.

We have also referred to the relevant rules and held that there was no contravention.

The High Court correctly rejected the evidence of Phoola and Madan Lal and came to the conclusion that there was no evidence of bargain for election.

The third corrupt practice alleged by the appellant was in connection with the covering of Nallah in Baluchistan Colony.

The. appellant alleg.d in paragraph 8 of the amended petition that the respondent Sukhadia, his election agent, other agents and. other persons with the consent of the respondent Sukhadia mis used his position as Chief Minister and ordered the Public Works -Department to construct roads and Nallah inter alia at Ward No. 27 in Baluchistan Colony. The appellant alleged that respondent Sukhadia visited that colony and induced the voters to vote for him and in turn promised to get the construction of the Nallah done in their colony. It will appear from Ex. A-31 dated

30 September, 1966 that the scheme for covering of Baluchistan Colony Nallah came into existence at the instance and because of the keen interest taken in the matter by the Health and Central Committee oi the Municipal Council, Udaipur.

There was a resolution of the Sanitary and Health Committee dated 27 August, 1966 Ex. A-28 where it is recorded that unfortunate incidents took place at the Nal!ah because children fell into the Nalliih and cattle also fell in the Nallah and ther~ was insanitary' condition.

There are many documents between the years I 966 and 1967, pointin!( about the unsatisfactory and unhygienic condition of the Nallah. In the month of December. 1966. the Urban Improvement Trust noticed that the Government had refused subsidy for the coverin!( of the Nallah and request for loan was made and proportionate contribution was expected to be made by the unicipal Council and the Irrigation Department. The Chairman. Urban Improvement Trust. in Ex. A-34 dated 19 January .. 1967, wrote to the Secretary. Town Planning Depart: ment. mhmatm!( that the work of the Nallah was being started in anticipation of the Government _sanction. In Ex. 65 (252) dafed 30/31 January, 1967. the Secretary. Town Planning wrote (o

,.........._,

the Chairman, Urban Improvement Trust, that it would not be possible for the Town Planning Department to spare the Illi>lley but he would ask th.e Chief Engineer., Health and the, matter should be discussed with the Town Planning people. Th.e Chairman in his oral evidence explained that he was quit~ surprised to

see the letter. Ex. 7-A is a telegram dated IO February, 1967.

There are various office notes on the Secretariat file being Exs. 253; 254, 255, 256, 257 and 266. In the month of February, 1967 the office notes were sent to the Municipal Local Self-Government. It appears that the Financial Commissioner did not at

first accord his approval to the loan. The Financial Commissioner accorded sanction on 24 February, 1967 (Ex. 256). The office note of the Urban Improvement Trust on 6 March, 1967, c proposed that the matter might be placed for admmistrativ1; and tecfmical sanction and also for the acceptance of, the tender.

Formal sanction Ex. A-35 was made on 31 March, 1967. In that .sanction reference is made to the letter Ex. A-'34 dated 19 January, 1967 and a telegram Ex. 7-A dated 10 February, 1967.

This telegram was described by the High Court as "faked" because there was then no sanction. The High Court was wrong

in describing the telegram in that manner. The telegram Ex. 7-A dated 10 February, 1967 was sent by the Secretary to the Collector and Chairman of the Improvement Trust. Ex. 266 dated 10 'February, 1967, is an office note to the effect that the Chairman, Town Planning had gone to Udaipur and was asked to discuss the case regarding Nallah in Baluchistan Colony with the Chairman, Urban Improvement Trust, Ex. 253 dated 11 February, 1967 is another office note stating that recommendation for grant of loan was sent for approval to the Financial Commissioner. All these documents read in proper sequence would indicate that Ex. 7-A was a genuine telegram in anticipation of sonction.

The Financial Commissioner did not at first agree to accord his approval to the loan. The Secretary, Town Planning, again moved the Financial Commissioner for sanction. The Financial Commissioner accorded sanction on 24 Fabruary, 1967 (Ex. 256)., The Minister gave his assent to the sanction of the loan on 2 March, 1967. On 6 March, 1967, the matter, according to th.e office note, was placed for administrative and technical sanction and for acceptance of the tender. On 31 March, 1967, formal sanction was given vide Ex. A-35. It appears that the covering of the Nallah in Baluchistan Colony was not an extraordinary or abnormal affair.

It may be stated here that respondent Sukhadia resigned from his office on 13 March, 1967 and President's Ru1e was imposed, which continued till 26 April,

1967. The .sanction was given at a time when respondent sukhadia was not in office. A revised sanction was made on

F -

27 June, 1967 (Ex. A-38). Tenders for c; wering of the Nallah had been asked for by Ex. A-39 dated 29 December, 1966.

Ex. I 09 is an address presented to the respondent Sukhadia on behalf of the refugees of Baluchistan and Jacobabad Colonies at a public meeting at Salatia Grounds on 5 February, 1967.

This address does not make any reference to the covering of the Nallah. If the respondent Sukhadia had made any promise to that tenor on 31 January, 1967 or prior to 10 February, 1967, it would have found mention in the address.

The Urban Improvement Trust had one part-time Executive Engine;; r, Chhail Behari Mathur. His real job was that of Executive Engineer, P.W.D., \, Jdaipur.

The decisions in the Ufban Improvement Trust were usually taken by the Chairman and the Executive Engineer.

The appellant in his oral evidence said that when he was Vice Prsident of the Municipality and also a Member of the Urban Improvement Trust, it was felt necessary to cover the Nallah. The proceedings of the Urban Improvement Trust in the year 1966 will show such cours, e of iiction to be correct.

The Urban Improvement Trust Resolution of 21 S.p tember, 1966 stated that money was being arranged for and would be forthcoming before the liability arises. Rule 375(a) of the Public Works Department Financial and Accounts Rules inter-alia states that until an assurance has been received from the authority competent to provide funds work could be undertaken because such funds will be allotted before the liability matures. If th.e Urban Improvement Trust had to spend a sum over and above the budgeted provision in the course of the year a supplementary budget was to be passed. Again Rule 375 (b) it is stated that whether on ground of urgency or otherwise if an officer is required to carry out a work for which no appropriation exists, the officer is directed to intimate to the Accountant General when he is incurring a liability in which no appropriation has been made in the budget. Therefore, an officer incurring the expenditure will take immediate steps by addressing . the appropriate competent authority to obtain orders either to stop work or regularise its execution. That is why, K. K. Joshi, Chairman of the_ Urban. Improvement Trust informed on 19 January, 1967 that he was starting the work in anticipation of Government sanction (See Ex. A-34).

Inviting tenders could not have been postponed to a date when the loan came in hands of the Urban Improvement Trust.

When tenders were opened on 17 January, 1967, the tender <)f

Sanganeria Brothers was the lowest and it was orally accepted.

The actual contract was entered into after the Urban Improvement Trust gave formal sanction on 13 April, 1967. The Urban

Improvement Trust framed its own scheme. "Expenditure sanction" is not required in the Urban Improvement Trust because Resolution for work would amount to sanction in anticipation of allotment of funds. Rule 318 of P.W.D. Rules requires that the proposals are structually sound and estimates are accurately calculated. Chhail Behari Mathur prepared the scheme, estimates, designs and plans. He was the highest technical person in the Urban Improvement Trust.

When Urban Impovement Trust decided to execute the scheme it looked for money. The Local Self-Government Secretary on 8 January, 1967 assured the loan.

The Town Planning Department approved the sc]J.me. The approval meant approval for raising the money. The Secretary, Town Planning Department was also the Secretary of the Local Self-Government Department.

The Local Self-Government De partment, Town Planning, and Public Health Department really formed one Unit it! the Secretariat. Though tenders were opened on 17 January, 1967 formal contract was signed after the date.

Though the work l; lad started in February, 1967 it was stopped for. some time. The work orderwas dated 29 March, 1967 and the work was completed on 2.~ November, 1967. The tender notice gave 8 months for completion of work. There was a Conference at the Secretariat between the Chief Town Planner, Secretary and Deputy Secretary of the Town Planning Department on 10 February, 1967. They decided to sanction Rs. 60,000/- out of Land Acquisition and Development Fund. Therefore, as far as the Joan was concerned the Department had only to obtain the concurrence of the Finance Department. The Accounts Officer therefore sent a telegram Ex. 7 -A that sanction was accorded for loan and formal sanction would follow. Rule 50 of the General Financial and Accounts Rules states that where it is desired to sanction expenditure before the funds have been communicated, the authority proceeds in a cautious manner by stating : "subject to the funds to be communicated in budget of the year." The Accounts Officer was careful in indicating that a telegram was not a formal order for sanction and something was yet to be done.

The ultimate sanction was issued on 31 March, 1967. The Urban

Improvement Trust on 15 April, 1967 paid the first running bill amounting to Rs. 52,466.60.

On the entire evidence it was apparent that there was urgency of the work.

The Municipality felt the urgency.

The resolution of the Municipality Ex. A-28 asked the Urban Improvement Trust to act forthwith in the matter of covering of the Nallah.

When the scheme Ex. A-31 was sent to the Town Planning Depai:tment, copy was sent to the Chief Minister as well as the Law Mijiister. This was between the months of September and November, 1966. Reminder was sent in the month of January. 1967

to the Chief Minister. The respondent Sukhadia said that the scheme was brought to his notice. Sometime in the month of December 1966 the respondent Sukhadia pointed out to the Chief Enneer, Health about the bad condition of the Nal!ah and expressed desire for improvement. It, therefore, follows that the respondent Sukhadia was shown the scme once in te month of December, 1966 and the only observauon made by hllil was that there should be improvement.

This was ordinary official duty done by the respondent Sukhadia. It is impossible to impute any motive whatsoever to the respondent Sukhadia that he was guided by any corrupt motive for any election bargaining.

When the Urban Improvement Trust was trying to get revival of the lapsed sanction in the month of June, 1967, the matter again came to the respondent Sukhadia. This was too far removed from the election date to have any connection or relovance therewith.

It was suggested that file Ex. 247 was tampered and that a small slip had been pasted between note 113 and note 114. The word 'issued' is written on that slip. Before the slip was pasted the words were "draft vetted D. S. may also see as it is important matter". The contents would show that the draft was "vetted" and the note was irrelevant and this was again in the month of January, 1967 long before the election. So, the pasting of the slip was also an ordinary routine affair. In cross-examination. of the respondent SuJr.hadia it was suggested that the words below the slip were "as desired by Chief Minister on phone sanction may be accorded." The words can be seen on the original and the suggestion is baseless.

The appe!lant's allegation against the respondent Sukhadia as to installation of public water-taps is l>ased on paragraph 11 of the amended petition. The appellant alleged that the respondent by exercising his influence as Chief Minister got SO public water-taps installed in different localities, of Udaipur City Constituency two or three days before the poll. The respondent did not admit the allegations. The High Court caine to'lhe conclusion that the documentary evidence on record did not warrant a finding that the respondent got the public hydrants insta!led by the exercise , of his influence.

We have not found any reason to hold that the High Court was in error.

The last allegation on which the appellant relied as an ins~ tance of corrupt practice was Ex. 8, which was a leaflet. The H leaflet contained a statement "The Vice-President of Jan Sangh Shri Bhanu Kumar Shastri too:\': illegal possession of Government land in Shivaji Nagar by force and left a road of 9 ft. width only". '-PIS Sup. C.l./71

It was said that the statement of fact related to the personal character and conduct of the petitioner and was, therefore, an offence within the meaning of section 123(4) and section IOO(B) of the Representation of the People Act. The High Court held that the statement of fact contained in Ex. 8 that Bhanu Kumar Shastri encroched on government land and constructed his house at Shivaji Nagar was false and the respondent Sukhadia believed the statement to be false. The High Cout also held that the statement related to the personal character of Bhanu Kumar Shastri but it was not reasonably calculated to prejudice 1the prospects of his election and the leaflet was not printed or distributed with the consent of the respondenrt Sukhadia or his election agent. Counsel for the appellant relied on the evidence of Bhagwati Lal Bhat and Girdhari Lal Sharma to cont.end that the respondent was responsible for the printing. Bhagwati Lal Bhat is R.W. 36 and Girdhari Lal Sharma is R.W. 2. Bhagwati Lal Bhat said that he was Secretary, District Congress Committee, Udaipur at the relevant time and he used ito get leaflets printed for election propaganda. He also said that be got Ex. 8 printed at Krishna Printing Press and Madho Lal agent of Bhuleshwar Mina asked him to get the same printed. Girdhari Lal Sharma was the election agent of respondent Sukhadia. He said that work for the respondent Sukhadia and Bhuleshwar Mina, who was a Parliamentary candidate from the same' constituency w; s carried on from the same office. Girdhari Lal Sharma used to draft leaflets and pamphlets which were published for the election campaign of the respondent Sukhadia. Madho Lai used to get leaflets and pamphlets for the election campaign of Bhuiesbwar Mina printed. The election propaganda by the District Congress Committee according to Girdhari Lal Sharma was in the charge of Bhagwat Lai Bhat.

Counsel for the appellant invited us to hold on the evidence F that Ex. 8 was printed by the respondent Sukhadia's election agent and with his consent. The appellant in his oral evidence said that the respondent Sukhadia got Ex. 8 printed at the press of bis election agent, Girdhari Ia!. It was rtot alleged in the petition' that the respondent or Girdhari Lal got the leaflet printed.

Neither in 'the petition nor in evidence, knowledge or consent of Girdhari Lai is aileged about printing the pamphlet Ex. 8.

Girdhari Lal said that he came to know of the leaflet only after

he had received a copy of the election petition. This was not challenged in cross-examination of Girdhari Lai nor was it suggested that the printing of the pamphlet was done at his press H with the knowledge or consent of Girdhari Lal. The only allegation in the petition was that the leaflet was published in the Krishna Printing Press of Girdhari Lal. Girdhari Lal also said

A that he did not sit at his press in the months of December, 1966 and January and Febrnary, 1967. Girdhari Lal's Manager, Babu Lal used to maintain the accounts and look after the business of the press during those months. It was never suggested to Gir dhari Lal that the le!lftet was printed with his knowledge or consent. Bhagwati Prashad Bhatt and Madho Lal gave evidence on B behalf of the respondent.

Bhagwati Prasad said that the leaflet was printed by him for the District Congress Committee.

The High Court correctly held that neither the respondent nor his election agent, Girdhari Lal got the leaflet Ex. 8 printed or gave consent to its being printed and further that it could not be held that the respondent or his agent had knowledge of the distribu C tion of the leaflet.

As to distribution of the pamphlets, the appellant originally mentioned no particular persons as distributors but after amendment, three persons, namely, Hanuman Prashad, Bhagwati Prashad Bhat and Isthiak Ahmed were mentiond as distributors.

D There is no evidence that Girdhari Lal distributed the leaflet.

In paragraph 15 of the petition, the appellant alleged that the respondent addressed meetings at Dholi Basri and l\Wti Chohtta on 10 February, 1967 where the respondent orally made defa- . matory statement about the appellant making an encroachment upon the Government lnd. Narain Lal and Shanker Singh gave E evidence on behalf of the appel!ant and said .that the respondent in their presence made the statement that the appellant had cons tructed a house on Government land. The High Court did not accept the oral evidence on behalf of the appellant. Counsel for the appellant submitted that though the respondent denied that he held a meeting at Dholi Basri and Moti Chohtta on 10 Febru- F ary, 1967, there was mention of meetings at those places in th11 police report.

The High Court held that the res11ondent might have contacted the people at the places mentioned but re.iected the appellant's version that the respondent said that the appellant had encroached upon the Government land. We do not see any

reason to take a different view.

G Counsel on behalf of the appellant contended tha• it was not open !O the responent to challenge several findings of fact by the High Cort agamst the respondent without preferring an appeal.

Sections 1 l 6A, 1 l 6B and 116C of the Representation of the People Act deal with appeals, stay of operation of the order by !he Court and procedure in an appeal respectively.

Under H section l 16A, appeals shall lie to this Court on any question whether o~ law or fact fr?m every order made by the High Court under section 98 or section 99 of the Representation of the People Act.

Sections 98 and 99 speak of orders on the election

petition. Section 98 speaks of orders dismissing the election Retition or declaring the election to be void or declaring the election of a returned candidate to be void and the petitioner to have beeµ duly elected. Section 99 speaks of orders recoroing finding of commission of corrupt practice and names of persons who were guilty of corrupt practice.

Under section 116C of the Representation of the People Act the procedure in an appeal is that subject to the provisions of the Act, and ot the Rules, if any, made thereunder every appeal shall be heard and determined by this Court as nearly as may be in accordance with the procedure applicable to the hearing and determination of an appeal from the final order passed by a High Co11n in the exercise of its original jurisdiction and of the provisions of the Code of Civil Procedure and the Rules pf the Courts shall as far as possible apply in relation to such appeal.

There are no rules of this Court which have any bearing on this matter;

The provisions contained in Order 41, R. 22 of the Code of Civil Procedure are attracted by the words of sectio11i 116C of the Re- D presentation of the People Act with th.e result that the respondent may support the decision and judgment on any ground decided against him: This Court in Ramanbhai Ashabhai Patel v. Dab/zi Ajitkumar Fulsinji & Ors.( 1), negatived the contention that the

reswndent was not competent to challenge the correctness of a finding as he had not preferred an appeal and said "We cannot E lose sight of the fact that normally a party in whose favour the judgment appealed from has been given will not be granted special leave to appeal from it. Considerations of justice, therefore require that this Court should in appropriate cases permit a party placed in such a position to support the judgment in his favour even upon grounds which were negatived in that judgment".

In the recent case in T, N. Angami v. Smt. Ravalu Reno M.

S/zaiza (Civil Appeal) No. 1125 of 1970) thi.s Court in the judgment dated 21 January 1971 reiterated the views expressed in the case, of Ramanbhai Ashabhai Patel (supra).

There is an additional reason for allowing the respondent to support the judgment even on findings against the respondent, specially when it appears that the High Court has not taken into consideration the entire documentary and oral evidence in arriving at a finding. If the High Court has overlooked important and cT?dal documents or oral evidece, such evidence will justify

this Court to support the 9ontenuons of the respondent that the findings of fact arrived at by the High Court are against clear and cogent proof of facts. This Court wiJI, therefore, be justified

(I) [1965] l S.C.R. 712

in recording the correct findings on ample and abundant. materials which have been overlooked and ignored by th.e High Court. In the present case, we have had occasion to deal with these aspects on the rival contentions and recorded our findings.

It was said on behalf of the appellant that under s. 123 of the Representation of the People Act, bargain was not necessarily an ingredient of corrupt practice of bribery. The onus of proof of corrupt practice is on the appellant. Allegation of corrupt practice is of a serious nature.

In Ghasi Ram v,. DaJ Singh & Others(') and Om Prabha Jain

v. Abhash Chand & Anr.('), this Court considered acts of Ministers, who were candidates at elections in relation to using discretionary fund on the eve of the election. Two propositions were established. First, "the position of a Minister is difficult.

It is obvious that he cannot cease to function when his election is due.

He must of necessity attend to the grievances, otherwise he must fail. He must improve the image of his administration before the public. If everyone of his official acts done bonafide is to be construed against him and an ulterior motive is spelled out of them, the administration must necessarily come to a stand-still . . . . . . . . . . . . . . . . . . . . With an election in the near future, the political party had to do acts of a public nature. The grants of discretionary grants(sic) were part of the general scheme to better community development projects and to remove the immediate grievances of the public. The money was required to be spent in 3 months' time. The action of the Minister had often th.e c_oncurrence and recommendations of his subordinate -staff.

Iris for this reason that the orders about the improvement of the supply of waters were not pressed. They were incapable of being construed against the first respondent.

Therefore, emphasis w<is placed upon "the distribution of money". Second, "To arrange to spend money on the eve of elections in different constituencies although for general public good, is when all is said and done an evil practice, even if it may not be corrupt practice. The dividing line between an evil practice and a corrupt practice is a verr thin one.

It should be understood that energy to do public good should be used not on the eve of elections but much earlier and that even slight evidence might change this evil practice into corrupt practice. Payments from discretionary grants on the eve of elections should be avoided".

Allegation of corrupt practice is a charge of criminal natue.

The provisions in the Representation of the People Act are tntended to preserve the purity of the elction, but t the ame time these provisions shoukf not be subverted for the impure purposes

of maligning candidates who happen to be in the Government on the eve of the election. The normal bonafide acts of P'rsons who happen to be Ministers have to be kept separate from abuse of the opportunities of power and resources whkh are not available to their opponents.

Under section 123 (!) of the Representation of the People Act, bribery is said to be a gift, offer or promise by a candidate of any gratification to any person with the object directly or indirectly of 'inducing an elector to vote at an election. The ingredients of bribery are, therefore, first gift or offer or promise of gratification to an elector, second, the gift or offer or promise of gratification is for the direct or indirect purpose of inducing an elector to vote. It was said on behalf of the respondent that if Ministers on the eve of the election render public or social service by redressing grievances of the public in relation tO construction of roads or installation of water taps or closing of insanitary drains or pits, these acts should not be interpreted to be either gift .or offer or promise of gratification. It is difficult to lay down an abstract proposition. Ordinarily amelioration of grievances of the public appears to be innocuous.

If, however, there is evidence to indicate that any candidate at an election abuses his power and

position as a Minister in the Government by utilising public re venues for conferring advantage or benefit on a particular group of people for the purpose of obtaining their votes, different considerations will arise. The Court is always vigilant to watch not only the conduct of the candidates and to protect their character from being defamed but also to see that the character and conduct of the public is not corroded by corrupt motive or evil purposes of candidates. The genuine and bonafide aims and aspirations of candidates have to be protected on the one hand and malafide abuse and arrogance of power will have to be censured on the other.

Judged by the tests laid down in these decisions it has 'to be found out as to whether the respondent Sukhadia did ady act which can be construed to be out of the ordinary or with a view to entering into an election bargain with the voters. In all the three instances relied on by the appellant at Raigar Colony, Tekri and Balµchistan Colony, it is manifest that there were long standing public grievances and the Government from time to time made

suggestions and recommendations for redress of the grievances and amelioration of the condition of the people.

It cannot be said that on the eve of the election there was any sudden or spontaneous out-burst of public activity in the shape of diverting public money to win electors on the side o{ the respondent

Sukhadia bv throwinl!: baits or givinl! them anv particular and

specially favoured treatment.

For these reasons we are of opinion that the appellant is not entitled to succeed. The appeal fails and is dismi~. Parties will pay and bear their own costs.

V.P.S.

Appeal dismissed.

BHANU KUMAR SHASTRI

MOHAN LAL SUKHADIA & ORS

January 22, 1971

January 22, 1971

[G. K. MITTER AND A. N. RAY, JJ.]

G. K. MITTER

A. N. RAY, JJ.

ss. 116A, 116C and 123( l)

Civil Procedure Code

Supreme Court

s. 123(1)

Representation of the People Act, 1951

s. 1

the Representation of the People Act, 1951

the Representation of the People Act, 1951

s. 116A

High Court in the exerdse of tis original jurisdiction and the provisions of the Code

C.P.C

s. 123(1)

[1968] 3 S.C.R. 102

Om Prabha Jain

S. 116

A. S. Bobde

Guman Lal Lodha

J. S. Rastogi

Jagadisfr Pandya

M. L. Vaidya

D. V. Dani

S. S. Parekh

S. S. Khanduja

N. K. Shejwalkar

S. Mohan Kumaramangalam

L. Gobhil

L. Gobhil and K. Baldev Mehta, for respondent No.

K. Baldev Mehta

M. B. L. Bhargava

M. B. L. Bhargava, S. N. Bhargava and Sobhag Mal Jain, for respondent No.

S. N. Bhargava

Sobhag Mal Jain

Ray

Mohan Lal Sukhadia

Mohan Lal

2 Mohan Lal also contested the election but obtained only 1262 votes.

Narendra Singh Lakheri

Narendra Singh Lakheri and Girdhari Lal Sharma Nos.

Girdhari Lal Sharma

Sukhadia

The respondent Sukhadia who was the Chief Minister tenodered his resignation.

13 March, 1967

Rajasthan

Sukhadia

Section 83

Representation of the People Act

29 May, 1967

On 29 May, 1967, the appellant furnished particulars.

19 . July, 1967

14 August, 1967

13 November, 1967

The appellant filed a '.finally amended petition on 13 November, 1967.

sukhadia

The appellant examined 30 witnesses and the respondent sukhadia examined 46 witnesses.

Section 123

Section 123(2)

Representation of the Peopie Act, 1951

Section 123

the Representation of the Peopie Act, 1951

the Representation of the Peopie Act, 1951

Representation of the People Act, 1951

Udaipur

Tekri

Udaipur City

Sukhadia

10 February, 1967

Jaipur

S. 123

Representation of the People Act

Girdhari Lal

5 February, 1967

Kalu Raigar

Shankar Harijan

Keshulal

Sukliadia

c

The respondent Sukliadia stated that the order dated 5 February, 1967 (Ex.

26 February, 1962

A-99) and further clarified by a subsequent order dated 26 February, 1962 (Ex.

Grihya Nirman Sahkari Samiti

Thakker Bapa Colony

Urban Improvement Trust

City Improvement Committee

27 April, 1959

Grihya Nirman Sahakari Samiti

31 December, 1966

On 31 December, 1966 the Secretary wrote as follows :

"Please speak immediately.

D. S.

D. S. (Deputy Secretary)

Social Welfare."

24 January, 1967

Section 123

Representation of the People Act, 1951

Lakshmi Narain

Kalu Ram

Keshuial

Kalu Ram

Kalu Ram was a member elected to• the Municipal Council, Udaipur on Jan Sangh ticket.

Municipal Council, Udaipur

Lakshmi Narain

Lakshmi Narain was neither a Harijan nor <1 Raigar.

BHANU KUMAR V

IOHAN LAL

Urban Improvement Trust, Udaipur

5 Feb1uary, 1967

Kaid Ram

Rajasthan Government

Roop Kumar

Gujrati

Lakshmi Narain

The oral evidence -Of Lakshmi Narain and Kalu Ram is unworthy of belief.

Sadia

Keshtilal

5 Febru- F ary, 1967

Tekri village

Chhail Behari Mathur

Chhail Beha!'i Mathur

Madan Lal

28 December, 1959

Phoola

Madan Lal

Baniara Samiti

Banjara Samiti

A/126 is a letter of complaint by the Banjara Samiti against the hindrance by the Police.

10 April, 1967

12 Aug11, st, 1967

15 November, 1967

September, 1967

14 February, 1967

1 April, 1967

14 February,

1967

12 April, 1967

section 72

Section 72

31 January, 1967

Section 2

section 2(1)

section 72

s. 20

Phoola

Nallah

27 August, 1966

There was a resolution of the Sanitary and Health Committee dated 27 August, 1966 Ex.

19 January .. 1967

A-34 dated 19 January .. 1967, wrote to the Secretary.

24 February, 1967 (

The Financial Commissioner accorded sanction on 24 February, 1967 (Ex.

6 March, 1967

31 March, 1967

10 'February, 1967

Baluchistan

11 February, 1967

24 Fabruary, 1967 (

The Financial Commissioner accorded sanction on 24 Fabruary, 1967 (Ex.

Jdaipur

His real job was that of Executive Engineer, P.W.D., \, Jdaipur.

Ufban Improvement Trust

K. K. Joshi

That is why, K. K. Joshi, Chairman of the_ Urban.

19 January, 1967

17 January, 1967

Sanganeria Brothers

13 April, 1967

Urban

Improvement Trust

The Urban

Improvement Trust framed its own scheme. "

Urban Impovement Trust

When Urban Impovement Trust decided to execute the scheme it looked for money.

8 January, 1967

The Local Self-Government Secretary on 8 January, 1967 assured the loan.

29 March, 1967

The work orderwas dated 29 March, 1967 and the work was completed on 2.~ November, 1967.

2.~ November, 1967

15 April, 1967

The Urban

Improvement Trust on 15 April, 1967 paid the first running bill amounting to Rs.

SuJr.hadia

Bhanu Kumar Shastri

Shivaji Nagar

section 123(4)

Representation of the People Act

Bhagwati Lal Bhat

Girdhari Lal Sharma

District Congress Committee, Udaipur

Krishna Printing Press

Madho Lal

Bhuleshwar Mina

Girdhari Lal Sharma

Girdhari Lal Sharma was the election agent of respondent Sukhadia.

Madho Lai

Bhuiesbwar Mina

Bhagwat Lai Bhat

Girdhari Lai

Babu Lal

Gir dhari Lal

Bhagwati Prashad Bhatt

Bhagwati Prashad Bhatt and Madho Lal gave evidence on B behalf of the respondent.

Bhagwati Prasad

Hanuman Prashad

Bhagwati Prashad Bhat

Isthiak Ahmed

Narain Lal

Shanker Singh

Dholi Basri

Moti Chohtta

10 Febru- F ary, 1967

Sections 1

Representation of the People Act

section 98

section 99

Representation of the People Act

Sections 98 and 99

Section 98

Section 99

section 116C

Representation of the People Act

the Code of Civil Procedure

the Code of Civil Procedure

Ramanbhai Ashabhai Patel

s. 123

Representation of the People Act

Representation of the People Act

section 123

Representation of the People Act

Raigar Colony


VIVIAN RODRICK

STATE OF WEST BENGAL

January 27, 1971

[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]

Criminal Law-Sentence of death-Inordinate delay in disposing of appeal by High Court-If ground for awarding lesser sentence.

The accused was committed 10 1rial in July 1963 and was convicted

and sentenced to death on September 4, 1964. The appeal to the High Court under s. 411A, Cr. P.C., was finally dismissed on February 6, 1970.

C The High Court left it to the State Government whether it should, reduce . the sentence on account of inordinate delay. ·

In appeal to this Court on th~ quesfion of sentence,

HELD : Section 302, l.P.C., prescribes two alternate sentences, namely, .. n· ·.·.·.· ... ' .. : .. ' ... • .• .r.·.: .. ,~ death sentence or imprisonment for life. When there has been inordinat~ 1 delay fa the disposal of the ap;1eal by the High Court, it is a relevant factor for the High Court to take into consideration for imposing the lesser oentence. [549 A-Bl

In the present case, the appellant has been for 6 years under the. f, ear of sentence of death, which must have caused him unimaginable mental agony.

In view of the excessive delay it is a fit case for awarding .the lesser sentence instead of leaving it to the Government to decide the matter on a mercy petition. (549 B-Dl

Nawab Singh v. State of U.P., A.LR. 1954 S.C. 278, referred to.

CRI¥£INAL APPELLATE JURISDICTION: Criminal Appeal No. 137 of 1970.

Appeal by special leave from the judgment and order dated F February 6, 1970 of the Calcutta High Court in Criminal Appeal No. 5 of 1964.

0. P. Rana, for the appellant.

S. P. Mitra and Sukumar Basu, for the respondent.

The Judgment of the Court was delivered by

Sikri, C.J. In this. case special leave was limited to the question of sentence only The relevant facts for determining this point are as f9llows : The appellant, Vivian Rodrick, was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having ]J.;!en committed to stand his trial by the Presidency Magistrate as early as July 31, 1963.

The substance of the charges against the appellant were as follows :

VIVIAN RODRICK V, WEST llENGAL (Sikri, C.J.) 54 7

(i) that on January 13, 1963 the appellant was a member of an unlawful assembty guilty of riot ing, being armed with deadly weapons and as such punishable under section 148, I.P.C.; (ii)

(iii)

that on January 13, 1963 the appellant committed the murder of one Vincent D'Rozaric and thereby committed an offence punishable under section 302, l.P .C.; and

that on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under section 5 of the Explosive Substances Act.

Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under s. 302 read with s. 149, and also under s. 148, l.P .C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge con victed the appellant under s. 302, I.P.C., and sentenced him to death. At the trial the appellant was also convicted for offences under s. 148, I.P .C., and s. 5 of the Explosive Substances Act, and sentenced to rigorous imprisonment for two years and three years respectively. The terms of imprisonment were directed to run concurrently.

The appellant filed a petition of appeal under s. 41 lA, Cr. P.C., on September 7, 1964, challenging his conviction and the sentences imposed on him. The High Court,_ by its judgment dated September 19, 1967 in Criminal Appeal No. 5 of 1964, confirmed the conviction and sentences imposed on the aptlellant. In considering the question of sentence the High Court observed that "the murder was a premeditated and cold-bl9oded one.

There was not the slightest provocation from the side of the deceased. This is undoubtedly a fit case for capital punishment. No question of showing any leniency on the ground of tenderness of age arises as the appellant is now aged about 35 years." It was urged before the High Court that the sentence of death should be reduced to rigorous imprisonment for life on account of the long delay that had taken place in hearing the appeal. Although the High Court regretted the delay and the consequent mental suffering undergone by the condemned prisoner, it felt that the "delay in executing thl( death sentence was not by itself a sufficient-ground for which the court should exercise its jurisdiction to commute the death sentence to one of imprisonment for life."

The appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same

SUPREME COURT REPORTS

[1971 J 3 S.C.R.

was refused on January 8, 1968. Having obtained special leave, the appellant filed an appeal to this Court (Criminal Appel No. 190 of 1968). By its judgment dated April 30, 1969, this Court set aside the the judgment and order of the High Court, dated September 19, 1967, and remanded the appeal to the High Court for fresh disposal and hearing in accordance with law and in the light of the observations contained in this Court's judgment.

This Court in its judgment in Cr. Ap. No. 190 of 1968 observed, regarding the four other co-accused, as follows :

"Though the conviction was for an offence under section 302 read with section 149, I.P.C., curiously they were sentenced to varying terms of imprisonment, and none of them challenged their conviction in appeals."

On remand the appeal was again dismissed by the High Court on Feoruary 6, 1970.

Chakrabarti, J., with whom Amaresh Chandra Roy, J., agreed, again considered the question of sentence and held that 'although there had been a delay of more than five years in executing the death sentence that was not by itself sufficient ground for commuting the death senten~. The High Court referred to Nawab Singh v. The State of Uttar Pradesh('1) and Piare Dusadh v. King Emperor('). As the High Court did not find any extenuating circumstances whatsoever that would Justify its taking a lenient view in the matter, it left to the State Government to take a decision as to whether it should, on account of inordinate delay in executing the sentence, exercise its powers under s. 402, Cr. P.C.

The learned counsel for the appellant contends that the matter should not have been left to the State Government.

In Nawab Singh v. The State of Uttar Pradesh(''), which has been referred to F by the High Court in its judgment dated February 6, 1970, it is observed:

"It is true that in proper cases an inordinate delay in the executian of the death sentence may be regarded as a ground for commuting it, but we desire to point out that this is no rule of law and is a matter primarily for consideration of the local Government. If the Court has to ex.erci.Se a discretion in such matter, the other facts of such case would have to be taken into consideration. In the case before us, we find that the murder was a cruel and deliberate one and there was no extenuating circumstance whatsoever which would justify us in ordering a commutation of the death sentence."

(I) A.LR. 1954 S.C. 278.

(2) [1944] F.C.R. 61

•r"

~ 1 .. .,. /

''7"\ .,

VIVIAN RODRICK v. WEST BENGAL (Sikri, C.J.) 54&

It seems to us that the extremely excessive delay in the dis posal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under s. 302.

Section 302, I.P.C., prescribes two alternate sente; Jces, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence. In this parti cular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been for more than six years under the f.ear of sentence of death. This must have caused him unimaginable mental agony. In our opinion it would be inhuman to make him sulfer till the Government decid5 the matter on a mercy petition. We consider that this is now a fit case for awarding the sentence of imprisonment for life. Accordingly we accept the appeal, set aside the order of the High Court award ing death sentence and award a sentence of imprisonment for life.

The sentences under s. 148, I.P.C., and s. S of the Explosive Substances Act and under s. 302; I.P.9., shall run concurrently.

V.P.S.

Sentence modified.

VIVIAN RODRICK

STATE OF WEST BENGAL

January 27, 1971

S. M. SIKRI, C.J.

P. JAGANMOHAN REDDY

I. D. DuA, JJ.

s. 411A

February 6, 1970

Section 302

P. Rana

S. P. Mitra

Sukumar Basu

Sikri

Vivian Rodrick

High Court of Calcutta

VIVIAN RODRICK

section 148

I.P.C

Vincent D'Rozaric

section 302

section 5

Explosive Substances Act

Stanley Rodrick

Ranjit Mandal

Simon Das

Ranjit Biswas

s. 302

s. 149

s. 148

September 4, 1964

s. 302

I.P.C

s. 148

s. 5

Explosive Substances Act

s. 41

September 7, 1964

September 19, 1967

October 21, 1967

January 8, 1968

April 30, 1969

section 302

section 149

I.P.C

Feoruary 6, 1970

Chakrabarti

Amaresh Chandra Roy

s. 402

[1944] F.C.R. 61

s. 302

Section 302

I.P.C

31, 1963

s. 148

I.P.C

Explosive Substances Act

s. 302


GURDEVS~GH

'V .•

STATE OF PUNJAB

JaTijU{lly 27, 1971

[G. K. MITTBR AND A. N. RAY, JJ.]

Service-Indian Police Service Sche;, e-Appellant interviewed and ced in List 11 un4er the Scheme while officiating as Superintenden~ of. ice-If inclusion in List conje"ed any rights on hl"m-Whether could .be reverted to substantive post of 'Deputy Superintendent of Police.

The appellant originally belonged to the Police Service in the Stat~ 'of Patiala and was promoted to officiate as a Superintendent of Police in .February 1950 in the erstwhile State of PEPSU. After the Indian Police

Servic~ Scheme was extended to PEPSU in 1950, the appellant was one of several persons interviewed by the Federal . Public Service Commission and his name was placed on what was styled in Lit II in the Schee.

He continued working as an officiating Superintendent of Police without being confirmed in the post. On December 1, 1954, he was reverted to D his substantive rank of Deputy Superintendent by an order of the Inspecior-General of Police. The appellant thereafter filed a suit claimii1g that the order of reversion was bad.

He alleged that the inclusion of his name in List II of the Scheme gave him a right to continue as an offici.at- :ing Superintendent of Police for five years and his reversion within that period to his substantive post amounted to a punishmen1.

He alleged there was thus non-c.Jmpliance with Art-:- 311 of the C.onstitution.

He also complained that while he was reverted, persons who were junior to E him; in the sense that their names had not been included in any of the Lists under the Scheme, were allowed to continue as officiAting Supei'iniendents of1 Police; there was therefore dcrimination s against him. !be case of\__the respondent State was that the reversion tlad been effected purely on aCiministrative grounds as a Superintendent of

1Police who was returning to the State had to be accommodated, and the£e was no vacancy in which the ap.Pellant could be allowed to work as Superintendent of F Police. 'The Trral Court held that the impugnee order was not made by way of punishment and the plaintiff had failed .to prove there was any discrimination against him. An appeal to the High Court was dis- missed. On appeal to this Court.· ·

HELD : The reversion was justified on administ!'ative grounds and there was no bar to such reversion by reason of , the inclusion of the appellant's name in List II. The said list merely ensured that the officers G whose name wereborne thereon would be watched for the space of five years and tliey might be absdrbed in .the All India Service even within . the said period as a result of periodical reviews.. Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of Police was not ruled out. As the officers in List 11...-had no right to be absorbed in the Indian Police Service immediately, the direction in the scheme that "officers placed in List II. wilt continue to hold their present post'.' merely. mt:ant that tey would ot be made. to go out H of their' posts except on Justifiable groun3s.

Holdmg a post ID an officiating capacity as a 'Superintendent G>f Police.' did not entitled the appellant

~ \·.<

~,·~

A to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadre to absorb them all. [556 Cl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1018 of 1967.

B Appeal from the judgment and decree dated January 16, 1967 of the Pujap and Haryana High Court in Regular First Appeal No. 358 of f9-64.

M~ C. Setalvad, Bishan Narain, Jawahar Lal Gupta and P. C.

Bhartari, for the appellant.

C Harbans Singh and R. N. Sachthey, fOr the respondent.

The Judgment of the Court was delivered by

Mitter, J.-The appellant who originally belonged to the police service in the State of Patiala and was promoted to offi- D ciate as a Superintendent of Police on 11th February 1950 in the erstwhile State of PEPSU filed a suit against the State of Punjab in January 1961 for a declaration to the effect that the order of the PEPSU Government dated 1st December 1954 reverting him to the post of Deputy Superintendent of Police (the substantive post which was formerly held by him) was unconstitutio.na.I and void and that he was entitled to ll the rightS by way of arrears E of salary and allowances etc. of the post of Superintendent of Police and that he continued as such in that capacity even after the date of the impugned order. The suit was dismissd by the Subordinate Judge of Patiala and his appeal to the Punjab High Court met with no beter fat~. He baS come to this Court by a certificate granted by the High Court under Art. 13 3 ( 1) (c) of the Con- F stitution.

The relevant fcts are as follows. The appellant started his career in the police service in the year 1942 as an As.sistant Superintendent of Police in the former State of Patiala. On the formation of the State of PEPSU he started to function in the same capacity in the said State. In 1950 he was promoted to officiate as a Superintndent pf Police. It appears that a scheme known as the Indian Police .Service Scheme was extended to PEPSU in the year 1950. The apellant was one of several peons wo

were called up for intervtew before the Federal Pubhc Sece Commission in June 1950 under the orders of the PEPSU Government and his name was placed on what was styled the Second List in the above scheme after the int"}rview.

H~ continud working as an officiating Superintendent of Police wtthout bemg confirmed in that post.

Qn December 1, 1954 he was reverted to

:his substantive rank of Deputy Superintendent of Police by an 'order of the Inspector-Gener4l of Police and he was directed to make over charge to oneS. Ajaib Singh, Superintendent of Police.

As he was on leave at that time he was given liberty to proceed on leave from that date after submitting a formal charge report.

The appellant's case before the Subordinate Judge in sub- B stance was that the inclusion of his name in List II of the scheme mentioned gave him a right to continue as an officiating Superin .. tendent of Police for five years and his reversion within that period to his substantive post amounted to a punishment : the order of reversion was bad as there was no compliance with th.e provisions of Art. 311 of the Constitution. He also complained that while c he was reverted persons who were junior to him in the sense that their names -bad not been approved by the Special Recruitment Board for inclusion in any of the Lists set forth in the Police Service Scheme were allowed to cont.tue in their post..s as officiating Superintendents of Police : the order ol reversion was bad because Of discrimination. He thus complained of loss of seniority a.nd postponement of chances of promotion in violation of his rights.

 The defence set up in the written statement of the State of Punjab was that the reversion was not by wav ot penalty and did not affect the appellant's chances of promotion. It was further pleaded that the inclusion of the appe1lant's name in List II did riot entitle him to be absorbed immediately in the Indian Police E $ervice cadre. Neither did it confer any rights of seniority over

other officers of the same rank. The revision had been effected purely on administrative grounds as there was no vacancy n which he could be a11owed to work as a Superintendent of Police and

onsequently there was no reduction in rank of the appellant. Art. 311 of the Constitution did not in the circumstances of the case F apply to the appellant.

:, The issue on which the appellant lost before the trial Judge was "Whether the order dated 1st Decembet, 1954 reverting the

plaintiff to the t>OSt of Deputy Superintendent of Police was illegal, unconstitutiOnal and void and not binding on him for reasons given in paragraph 7 of the plaint ?" The learned Subordinate J; udge held that the order of 1st December 1954 was not made }iy way of punishment and the pla.i1,1tiff had failed to prove that there ws any discrimin'ation against him in favour of any persons jior to him.

i No oral evidence was adduced at the trial stage.

When the H matter appeared before the High Court in the appellate stage. the appellant wanted to have himself examined orally and the High

Court alJowed that application. The plaintiff-appel1ant was then

examined before the Subordinate Judge. He stated in his examination-in-chief that when he was reverted from the rank of Superintendent of Police three persons, Ram Singh, Daljit Singh and Harpaul Singh who were also working in the same capacity as himself and officiating in the cadre of Superinttmdent:; of Police but whose names were not borne on List II of the Police Service

Sdleme on 1st December 1954 were allowed to function as before : besides them there was another person Kanwar Sain who although jwiior to him was allowed to continue as Superintendent of Police, Civil Defence, in an officiating capacity. His further statement was that after 1st December 1954 two persons by Name .Piara Lal and Karam Singh were promoted as Suparintendents of Police in March 1955 and June 1956 respectively and on these occasions his case was not considered for promotion. ln'his crossexamination he admitted that il the Indian Police Service Scheme had not n extended to PEPSU, Ram Singh, Harpaul Singh and Daljit Singh would have to be treated as senior to him in the civil list.

As the stand taken by the appellant rests on his claim based on the inclusion of his name in List II of the Indian Police Service

Scheme it .is -necessary to examine the same and find out what right it gave him. The Scheme, an exhibit in this case, shows that it was meant to provide "for the extension of the organisation of the Indian Police Service" so that senior police officers could be available to the Government of the States and the Union of States in India. The primary object of the extension was to maintain and where necessary introduce a standard of efficiency at the highest administrative level in the States comparable to that main~ tained in all Provincial Governments and at the Centre. The

Scheme was extended to numerous States including PEPSU. Clause 4 of the Scheme shows the intial constitution of the service. It laid down steps to afford opportunities to existing incumbents of the posts to be encadred and all officers holding posts of similar status were to be considered to be the first and primary so~ r recruitment to the State cadre of the Indian Police Serv1ee at its initial constitution. This was done by each State Government setting up a Selection Board in cQilSultation with the Government of India. The Board was to review cases of $9fficers of the State Government of the description mentioned make 'a preliminary selection from among them of all officers of' the State Government of the specified descriptions who were suitable for inclusion in one or the other of the three lists referred to in the subsequent paragraph. The First List was to contain names of officers who were considered suitable for immediate appointment to, the Indian Police Service subject to probation with reference to the minimum All India Standard adopted in assessing the suitability of Provincia) SerVice Officers. The second list was to "cQD.tain names of

SUPRE~E COURT REPORTS

[1971]3 S.C.R ..

officers who though not up to the required standard immediately A showed sufficient promise to render it likely that they would attain such standard, with further experience during a period not exceeding five years." Officers in List I were to be immediately appointed to the Indian Police Service in the Stat, e cadre concenned subject to a probation. The scheme provided that- ~

"Officers in List ll will-ontinue to hold their present post but will not be absorbed in the Indian Police Service immediately.

Their work will be watched during the next five yers and they will be absorbed in the All Lndia Service as a result of periodical reviews as and when they are found fit for the service. Those of them who are not found fit .. within the period of five years will either be reverted to posts outside th~ cadre of the Indian Police

Servie or retire as the State Government concerned might think fit, unless they are also mcluded in List III."

The Order of the Inspector-General of Polioo dated December D 1, 1954 was worded as follows :-

"1 am directed to inform you that, on having been relieved by S. Ajaib Sirigh, Superintendent of Police. you are reverted to your subStantive rank of Depucy Superintendent of Police, with effect from to-day. You may ptoeeed on leave from to-day after submitting formal E charge report."

By itself the order is unexceptionablein that it merely directed the appellant who was. serving in an officiating capacity to go back to his substantive, post.

There is no stigma cat on him and no adverse remark . agaist his character or efficiency. If it be a fact that he was reverted for administrative reasons he could - F not complain except on the ground that. the inclusion of his name in .List II gav¢ him a right to hold the post of the Superintendent -of Police in an officiating capacity for five years. Apart from the consideration of the rights based on the inclusion of his name in the said list be could h~"-e no rievance about the retention of Ram Singh, Daljit Singh and Harpal Singh in the cadre of offi- G ciating Superintendents of Pri1ice. He could only base his com plaint on the retentioo of Kanwar Sain who was .iunior to him in the cadre in preference to himself.

Kanwar Sain, it appears from the notes regarding the representation of the appellant with regard to reversion made , by the Inspector General ot _Police. could not be reverted as he was at the material point of time on depu- H tation from Madhya Pradesh Government on particular terms /on

contract basis and it could not have been in the interest of Government to terminate his services earlier than the scheduled period

GURDEV SINqH V. PUNJAB (Mitter, i.) 555

It is also of interest to 1110te that the reversion of the appellant was ordered after matute consideration. A note prepared at the office of the Inspector General of Police which also bears the en~ dorsement of the Chief Secretary and the Chief Minister shows that Ajaib Singh Gill who had completed 23 years and 7 months of service was due back from leave on 1st December 1954 and he had to be retained for another year and five months before he could be pensioned off. As there was no job of S.P . .lying vacant in PEPSU at the moment it was suggested that the appellant who was the "junior (most) D.S.P." officiating as S.P. should revert and S. Ajaib Singh should be posted in his place.'

If 'the above note was a genuine document-and we have no reason to bold that it was otherwise-it is quite clear that the appellant was not sought to be reverted because of any shortcoming but because room had to be made for s. Ajaib Singh Gill and the axe fell on the appellant as he was considered to be the person at the bottom of the list of officers officiating as Superintendent of Police.

It is trlJe that Kanwar Sain's name does noti occur in this note but if Kanwar Sain was on deputation from Madhya Prade&h Govem- Jnent on a contract basis no exception can be taken to his having been retained in preference to the appellant.

It appears that in dismissing the ap~ of the ~:tppellant to the Higli Court. the learned Judges proceeded on the assumption E that the India!i Police Service scheme was legally binding and its provisions would have the same effect as the statutory rules and regulations. We may proceed to dispose of the appeal on the same assumption.

Th~ learned Judges of the High Court took the view that the appellant's grievance even based on List II could l}.Ot be upheld because he had been found unfit for retention in List II. The High Court apparently came to take this view of the F strength of a document which was eibid as C-2. The letter Ex. C-2 dated September 8, 1956 was addressed by the Deputy Secretary to the Government of India to the Chief Secretary to the Government of PEPSU. It purports to show that the Chief Secm-- tary's memorandum to the Governme.nt of India on August f3,

1956 containing the assessment of the State Govei'IliDCilt in respect G of the work of Siasat Singh Sekhon and Gurdev Singh Sindhu and the finding that these two officers were not fit to be recommended for appointment to the Indian PoJice Service cadre in accordance with the provisions contained in paragraph 4(ill) (b)-.ef the said extensiola was accepted by the Government of India. As the letter of the€bief Secretary dated 13th August 1956 was not pro.

H ducied befqte the court we are not in a position to say wbeft the ass~ (tf the work of the appellant in connection with the re tention oftlia JUline in Lilt II was made, i.e., whether it was befqre

j lst December 1954 or subsequent thereto and in our view the ~918 Sup.C~J

High Court should not have relied on this document. Moreover A the ground for reverting the appellant . to the substantive post of Deputy Superintendent of Police as borne out by the note prepared in the office of the Inspector-General of Police and acceded to by the Chief Minister made no reference to any such assessment. It is also noteworthy that no such ground was put I forwat:d m (he written statement where the only plea raised was founded OJl. ad- B ministrative convenience. -...__

Even thou~ we find ourselves unable to upholdo-Jll_e judgment of t.he High Court based on the contents of Ex. C-2, we take the view tl; lat the reversion was justified on administrative grounds arul __ there was no bar to such reversion by reason of the inclusion C CJl, tfte appellant's name in List II. The said list merely ensured that the officers whose names were borne thereon would be watched for the space of five years and they might be absorbed in the All India Service even within the said period as a result of .periodical reviews.

Although reversion on the ground of unfitness was mentioned in the scheme the possibility of such reversion when there was no available post in the cadre of Superintendents of D Police was not ruled out. As the officers in List II bad no right to be observed in the Indian Police Service immediately the direction in the scheme. that' "officers placed in List II will continue to hold their present post', merely meant that they would not be made to go out of their posts except on justifiable gronds.

Holding a post in an officiating capacity as a Superintendent of E Police did not entitle the appellant to continue in that post even if officers senior to him who were on leave or had been sent out of the State on deputation were to come back to the State and there was no room in the cadreto absorb them all.

All that paragraph 4(iii) (b) ensued was hat if th, ey were found fit within five years they woul~ be absorbed i" the All India Service cadre.

F If they were not found fit after the end of that period they could be reverted to posts outside 'the cadre of the Indian Police Service or made .to retire unless their names were a1so included in List

III-a contingency which has not arisen in this case. In our view, although the order of the High Court cann.qt be upheld on the ground mentioned in the judgment, the order cannot be quashed for reasons indicated by us.

The appeal is therefore dismissed, G

bu.t~ in the circumstances of this case we make no order as to coSts. ·

RK.P.S.

Appeal dismissed.

STATE OF PUNJAB

A. N. RAY, JJ.

Federal . Public Service Commission

December 1, 1954

Indian Police Service

C. Setalvad

Bishan Narain

Jawahar Lal Gupta

P. C.

Bhartari

C Harbans Singh

R. N. Sachthey

Mitter

Patiala

State of Punjab

PEPSU Government

Subordinate Judge of Patiala

Punjab High Court

Art. 13

PEPSU

Federal Pubhc Sece Commission

oneS. Ajaib Singh

Art. 311

Art. 311

1st December 1954

Ram Singh

Daljit Singh

Harpaul Singh

Kanwar Sain

.Piara Lal

Karam Singh

India

Clause 4

Government of India

Polioo

December D 1, 1954

S. Ajaib Sirigh

Harpal Singh

Madhya Pradesh Government

Ajaib Singh Gill

S. Ajaib Singh

Madhya Prade&h Govem- Jnent

September 8, 1956

Siasat Singh Sekhon

Gurdev Singh