THIRU JOHN & ANR.

RETURNING OFFICER & ORs.

April 12. 1977

[V. R. KRISHNA lYER, R. S. SARKARIA AND JASWANT SINGH, JJ.]

Constitmion of India, Article 84(b)-Appellant who was underaged to contest Raiya Sabha elections of 1914 gets his age in the electoral Roll alone altered butnot in other documents from 14-5-1946 to 14-5-1943 by producing an extract of the Baptism Register-Whether the result of the election materially affected on th-e improper acceptance of nomination-Representation of the People Act (Act 43), 1951, Sections 83, 97, 100 and 101.

Proof of disqualifications in a11 election petition-Onus lies on the petitioner initially.

Evidence Act (Act I), 1812--SectioiiS 17, 18, 19, 20 and 21-Admit'orrs made in several documents ante litem motam-Burden of proof shifts on the maker to show that they are erroneous.

"Continuing candidate"-Requisites to be a continuing candidate-Whether non-allotment of a "basket" or "parcel" under Rule 74 awomatically excludes him-Conduct of Election Rules, 1961-RulcN 71 (1 ), 74 and 15(3 ), 79, 80 lllld 81(2).

In the biennial elections of 1974 for filling six vacancies to the Rajya Sabha from the State of Tamil N adu, there were eight contestants, including both the appellants and one R. Mohanarangam, the petitioner in Election Petition No. 1 of 1974. The requisite quota to secure the election of a candidate was fixed

at ~O +1=3201 and the appellant John secured 3700 votes. While the

appellant Subrahmanyam secured 300 votes, Mohanarangam failed to secure any. The rest of them secured more than the quota, thus leaving "surplus votes" for transfer within the meaning of Rule 71 (6} of the Conduct of Election Rules.

In the election petitions filed by Mohanarangam and Subrahmanyam, the election of Sri John was assailed on the ground that on March 12, 1974, the date of the scrutiny of the nominations, he was less than 30 years of age and as such he did not possess the qualifications as to age laid down under Art. 84(b) of the Colllltitution that the improper acceptance of John's nomination has materially affected the election. The petitioners prayed that the election of Sri John be declared void and set aside under s. 100 of the Representation of Peoples Act, 1951.

Each of the petioners claimed that in the event of Sri John's election being set aside, he be declared elected under s. 101 of the Act.

A recrimination petition No. 1174 under s. 97 read with s. 83 of the Representation of Peoples Act was also filed by the appellant Subramanyam, opposing Mohanarangrun's relief for the declaration under s. 101 of the Act, alleging that since the petitioner Mohanarangam in E.P. 1174 had not secured any vote, he, in the event of the election of Sri John being set aside, was not entitled to be declared elected in the place of John.

The trial Judge of the High Court held that on the date of the scrutiny of nominations Sri John being less than 30 years of age was not qualified under Art. 84(b) of the Constitution to contest the election to the Rajya Sabha and accepting the election petition pro tanto set aside John's election. The trial Judge, however, dclined. o grant further declaration under s. 101 in favour of either of the election petitioner.

Dismissing the appeals, the Court, HELD : (1) From the evidence on record it stood clearly established that on the date of the scrutiny of nominations Sri John was less than 30 years of age

. THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 53 9

and in view of Art. 84(b) of the Constitution he was not competent to contest A the election for the Rajya Sabha. His nomination was, therefore, improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it co11cerned the returned candidate, Sri John materially affected the result • of the election.

[547 F-G]

(2) The onus of proving that on the date fixed for the scrutiny of nominations, a contestant was less than 30 years of age was on the election petitioners.

In the. instant case, the petitioners had amply discharged this onus by bringing on record over-whelming documentary evidertce of a cogent and convincing B character. This documentary evidence includes no less than a don previous admissions and declarations made between March 1964 and July 1973 by Sri John himself about his age, to the effect that he was born in 1946 and that his date of biith was 14.5.1946. Apart from the evidence of these prior admissions the election petitioners had brought other documentary evidence viz., the school record purportedly signed by John's guardian, Secondary School Leaving Certificate and various other documents of the educational institutions, Marriage Register, Bar Council Record and Church records etc. pointing to the conclusion that Sri John was born on 14.5.1946 and not on 14-5-1943. [542 D-H, 543 A-B- F] C

( 3) It is well-settled that a party's admission a~ defined in sections 17 to 20 fulfilling the requirements of section 21, Evidence Act is substantive evidence proprio vigore. An admission, if clearly and unequivocally made is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so" and until the presumption was rebutted the fact admitted must be taken to be establish'!d. In the instant case, there are a number of clear admissions in prior declarations precisely and deli- D berately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight.

They had shifted the burden on the appellant (Shri John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were incorrect. [543 C-E]

(4) Under Rule 71 (1) of the Conduct of Election Rules, 1961, "Contimiing candidate" means any candidate not elected and not excluded from the poll at any given time. Two elements must, therefore, be satisfied before a candidate E can be said to be a Continuing candidate. He should be a 'candidate not lJ' elected" and further he must not be excluded from the poll at any given time.

In the instant case Sri Mohanarangam fulfils both these conditions. [550 B,

552 CJ

(5) The contention that an essential prerequisite to the continuance of a candidate is the allotment of a "basket" or "parcel" under Rule 74 and only such candidate is entitled to the allotment of a basket who at the end of the count gets some vote to his credit and opens his account, and since Mohanaran- F gam did not get any vote whatever he stood automatically excluded is not correct. There is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the Returning Officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, be has not received any valid vote.

[552 E-HJ

(6) Sub-Rule (3) of Rule 75 which requires the Returning Officer to exclude from the poll a candidate whose score ts the lowest-governs the ounting

of votes where only one seat is to be filled and at the end of any count, no candidate can be declared elected. Sub-Rule (3) of Rule 75 has no application G •· lo. the instant case.

[552 GJ

(7) Rule 80 can have no application because it comes into operation at a stage "after all surpluses have been transferred". That stage never arrived in the instant case because in the first counting itself all the six seat~ were filled . up, six candidates (including Shri John) having received the requisite quota of first preference votes. Nor did the stage for annlyinJl Rule 81 arise. because at the end of the first count, no vacancy remained unfilled.

In the instant case Shri Mohanaran!l"am did not get automaticallv PXclurfed. Roth hParid ri H Subrabmanvam were "continuing candidates". Sri Subrahmanyam coulrt not be

dPdar~"d "'"ctl"r'l as he had 'not obtained the required quota of 3201 votes.

[522 H; 553 A]

SUPREME COURT REPORTS [1977] 3 s.c.R..

( ) (8) The wtio decidendi. of Vinvqnmlla v. Krmappa is app.licale only where, a there are tvo contcstmg candtdates and one of them ts dLqualified; (6) and the electun 1s. on the basis of single non-transferable vote. In the instant cnse, the elcllon tn question was not held by mode of single non-transferable vote, acco:dmg to which a simple rn:ajority of votes secured ensures the success of a can~1date, but by proportionul representation with single transferable vote under wt; Uh system the uccess of a candidate normally depends on bis securing the equJSJte Q';!Ota. Shn Subrahmanyam wns not the sole surviving continuing candtdate left m the field, after exclusion of the disqualified candidate Sbri John. (5H G-H, 555 A] '

ViswaiJ(rtha v. Konappa AIR 1969 S. C. 604, distinguished.

(9) All the votes that had polled in favour of Shri John who bas been found by the court to be statutorily disqualified for election cannot be reardcd as thrown away and in consequence, the appellant Shri Subrahmanyam who secured 300 votes as against none obtained by Shri Mohanaraogam cannot be dedarcd elected. Shri Subrahmanyam was neither the sole continuing candidate nor bad he secured the requisite quota of votes. It is nobody's case that the electors

who voted for Shri John had at the time of election knowledge or notice of the statutory disqualification of this candidate. On the contrary. they must have been under the impression that Shri John was n candidate whose nomination

had been validly accepted by the Returning Officer. Had the electol'11 notice of Shri John's disqualification, how many of them would have voted for him and hew many for the oth::r continuing candidates including Sarvashri Subrah manyam and Mohanarallgam and in whnt preferential ordr. remains a question in the realm of speculation and unpredictability. [553 BEJ

R. 1\1. SeJ!I(u/rl v. G. V. Pai AIR 1969 SC 692 @ p. 701, followed.

cr\, L APPELLATE JURlS'DICTION: Civil Appeals Nos. 1895-f896 and 1907 of 1974. (From the Judgment and Da.:crce dated the 14-10-1974 of the Madras High Court in Election Petitions Nos. 1 and 2 of 1974).

R. N. Chaudhary and Mrs. V. D. Klwmw, for the appellant in CAs 1896/74.

t . ... ...

l'. S. Cl1itley, T. N. S. Srinh•(tsavaradadwry'' & G. Ramaswamy, C. Lakslzminarain, S.R.L. Narain and Vinet't Kumar, for the appettant inCA 1907/74.

T. N. C. Srini, asavarudacharya, S. C. Lakslunindrain, S. R. L.

Narayan, M. S. Nurasimalwn, for respondent No. 10 in CA 1895, R%p. No. 6 inCA 1896 and respondent No. 7 inCA 1907.

A. V. Rtmgam und Miss A. Subslzaslzini, for respondent No. tin nil the rsppe<sls and for respondent No. 2 in 1907.

J. M. Klwmuz, !or repondcnt No. 8 in CAs. 1895-1896.

Tho: Judgment of the Court was ddivcred by

SARKARL\, J. The basic facts gi, ing riso to these appeals being common, the fiame wiJ.l be disposed of under one judgment.

Notice eallin~ for nominations to be filed before 3 P.M. ott 11-3-1974, for filling six vacancies to the Rajya. Sabha from the State of Tamil Nadu in the biennial elections was issued on March 4,· 1974.

eleven CllJldidates tiled their nominations. On scrutiny which was held on Mah 12, 1974. all those nominations weN found to be.\•atid. On

. --- .. .

THIRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 541

14-3-1974 which was the last date fixed for withdrawi; ll, three candidates withdrew their nominations leaving eight in the field.

The poll was held on 21-3-1974. Counting of votes took place on the same. date.

The result was published, according to which, the contesting candtdates secured the votes noted against their names as follows :

1. Shri Khadar Sha

2. Shri Khaja Mohideen .3. Shri V. Subrahmanyam

4. Shri C. D. Natarajan

5. Shri R. Mohanarangam 6 .Shri S. Ranaganathan

7. G. Laksbmanan

8. D. C. John @ Valampuri John

3500 3700

300 3500

Nil

The requisite quota to secure the election of a candidate was fixed at 22,400

and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were declared elected.

Two Election Petitions were filed by the unsuccessful candidates.

Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam. The petitioners prayed that the election of Shri D. C. John be declared void and set E aside under s. 100 of the Representation of the People Act, 1951.

Each of the petitioners claimed that in the event of Shri John's election being set aside, he be declared elected under s. 101 of the Act. In addition to the Returning Officer, the Electoral Registration Officer and the Chief Election Commissioner, all the seven contestants were impleaded as respondents.

The election of Shri John was assailed on the ground that on March 9, 1974, the date of the scrutiny of his nomination, be was tess than

30 years• of age and as such, did not possess the qualification as to age laid down in Article 84(b) of the Constitution. On these premises it was pleaded that the nomination of Shri John was improperly accepted and in consequence thereof, the result of the election has been materially affected.

A recriminatory petition No. 1/74 under s. 97 read with s. 83 of the Act was also filed by Shri V. Subrahmanyam petitioner in E.P. 1/

74, opposing Mohana Rangam's relief for declaration under s. 101.

The recriminator alleged that sine the petitioner in E.P. 1/74 had not secured any vote, he. in the event nf the election of Shri JohH being set aside, was entitled o be declared elected in the place of shri John.

The learned trial Judae of the High Court tried all the three petitions tC"eether and decided them by a common judgment.

B-502 SCI/77

SUPREME COURT REPORTS [1977] 3 s.c.R.

The rial Cour_t held that on the date of the scrutiny of his nomination, Shn John bemg less than 30 years of age, was not qualified under Art. 84(b) of the Constitution, to contest the election to the Rajya Sabha.

On this short ground his election was set aside and the Election Petitions were accepted pro tanto. The trial Court, however, declined to grant the further declaration under s. 1_01 in favour of either of the election-petitioners.

Aggrieved by that judgment, Shri John, has filed in this Court Civil Appeals 1895-1896 of 1974, and Shri V. Subrahmanyam Civil Appeal 1907 of 1974. .

The first question that falls to be determined in these appeals is : Whether S!tri John was born on May 14, 1946, as has been found by the Court below, or on May 14, 1943 as contended by him'!

Mr. Chowdhary appearing for the appellant (Shri John) contends that the burden of proving that Shri John, was at the material date below 30 years of age was on the election-petitioner and that the latter had faiJed to discharge such burden.

Further grievance of Shri Chowdhary is that the High Court had wrongly rejected the oral and documentary evidence produced by Shri John.

We find these contentions wholly devoid of merit.

.While it is true that the onus of proving that on the date fixed for the scrutiny of nominations, Shri John was less than 30 years of age, was ort the election-petitioners, they had amply discharged this onus by bringing on record overwhelming documentary evidence of a cogent and convincing character.

This documentary evidence includes no le~ tha'n. a dozen previous admissions and declarations made by Shri John himself about his age, between March 1964 and July 1973. These

documents containing such declarations constituting Shri John's admi8sions are':

 (i) Ex.P.7-Application for Pre-University Examination.

(ii) Ex.P-9-Application for B.A. Examination.

(iii)

(iv)

(v)

(vi)

Ex. P-14-Application for appearing in University

Examination.

Ex.P-15-Application for the first B.G.L. Examination. ··

Ex.P-17-Application for admission to B.G.L. Examination.

R'{.P-18-Application for second B.G.L. Examination April 1972.

(vii) Ex.P-19-Application for second BGL Examination, October 1972.

(viii) Ex.P-21-Application for admission into Law Col- . lege. .

(iv) Ex.-22-Application for B.L. Degree Examination.

i ..

THIRU JOHN v. RETURNING OFFICER. (Sarkaria, ].)

 (x) Ex.P-23(a), (b) & (c)-Applications dated 23-7- 'A 1~73 for enrolment as Advocate submitted to the Bar Counci1.

(xi) Ex.P-27-Voters Card containing declaration of his age as 28 years signed by Shri John.

(xii) Ex.P-87_:__a Book written by Shri John, containing a B . passage on its page 18 suggesting the inference that Shri John was born in 1946.

All these documents aforesaid contain admissions made by Shri John that he was born in 1946.

In several of these documents he declared 14-5-1946 as his date of birth.

It is well settled that a party's admission as defined in Sees. 17 to C 20, fulfilling the requirements of Sec. 21, Evidence Act, is substantive evidence proprio vigore.

An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be

so" and until the presumption was rebutted the fact admitted must be faken to be established.

The above principle will apply with greater force in the instant case. Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John.

These admissions were made ante litem motam during the decade preceding the election in question.

These admissions were entitled to great weight.

They had shifted the burden on the appellant E (Shri John) to show that they were incorrect.

The appellant had miserably failed to show that these admissions were incorrect.

Apart from the evidence of these prior admissions the electionpetitioners had brought other documentary evidence, also, pointing to the conclusion that Shri John was born on 14-5-1946 and not on 14-5-1943.

This evidence consisted of-

"'\ .1. (a) Exhibit P-1 an entry in the records of St. Xavier's -i College School, wherein the date of Shri John's birth is recorded as 14-5-1946;

(b) Ex.P .3 which purports to have been signed by the guardian of Sbri John, declaring his age as 14-5-1946;

(c) Ex.P-2, the E.Ss.L.C. signed by Rama Prabhu, the

Secretary to the Commission for . Government Examinations.

This Certificate was 1ssued under the

authority of law.

H .. . ,

2. Ex.P-4-Secondary School Leaving Certificate wherein ·

Shri John's date of birth is entered as 14-5-1946.

SUPREME COURT REPORTS

[1977] 3 S.C.R.

3. Ex.P~SO, copy of the Fort St. George Gazette dated 19-2-1964 showing Shri John's date of birth as 14:5-1946.

4. (a) Ex.P-5 the transfer certificate issued by the St.

Xavier's High School.

(b) Ex.P-10 transfer certificate issued by the Principal

of the College.

(c) Ex.P~13 entry in the admission register of the College for joining the first year B.G.L.

(d) Ex.P-1ntry in the admission register of the College, for admission to second year B.G.L. Class.

(e) Ex. P-10-entry in admission register of the College,

5. Bar Council Records relating to Ex. P~23.

6. Marriage Register, Ex.P-29, containing in the column __.,_ captioned "Age" as against the name of Shri John, the entry "26 years", and the date of his baptism as 19-10-

1946.

7. Ex.P.30, Periodical report from the Churches regarding marriages solemnised therein, required under the Indian Christian Marriage Act 1872, showing that Shri John'~ marriage was solemnised in St. Francis Xavier's Church, Madras, on 6-4-1972 by Fr. G. K. Swami, and that on the date of this marriage he was 26 years of age.

8. Exhibits Pll, P-ll(a), P-12 and P-12(a) record'S of T.E.L.C. Kabis High School showing Sbri John's date of birth as 14-6-1946.

9. Ex.P-28-Book-Varalatril Kalaignar Written by Shri John containing biographical sketch. Therein, his date of birth is mentioned as 14-10~1946.

The petitioner had also examined witnesses who testified with regard to these documents and the facts appearing therein. The learned trial Judve has carefully discussed and evaluated this documentary and oral evidence. No material error or illegality on the part of the learned Judge in appreciating this evidence has been pointed out.

The learned Judge found that the entries, Ex.P.29, in the Marriae Re!!ister are of QTeat evidentiary value. Mr. Chaudhury assails this finding.

According to him, no legal provision or rule of oractice requires that the date of Baptism should be entered in such RePister.

Secondly, it is url!ed that the date of baptism given therein is 19-10-46, which stands falsified by the evidence of Rev. Fr. Rosario, the Parish Priest who had baptised Shri John about 7 days after his birth in 1943.

It is furtl1er arl!ued that the best evidence as to Sbn John's date of birth could be that of the entry in the Public irth Register maintained under authMitv of law and that the election-petitioner on whom the onus lay, did not produce that evidence.

.......

THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 545

We Hnd no substance in these contentions.

In the witness box both Shri John (RW. 1) and his elder brother (RW 3 )admitted thei.J.1 respective signatures on this entry (Ex.P. 29) in the Marriage Register.

They however, contended that the information about the date of baptism was not supplied by them to the Priest who solern; llsed the marriage and made this entry.

The elder brother (RW. 3) however, admitted that they had signed the Register, notwithstanding the fact that the age of Shri John was mentioned therein as 26 years. Both the brothers however, admitted that Shri John's marriage was solemnised in St. Francis Xavier Church on 6-4-1972.

In view of the admissions of RWs 1 and 3, the High Court was right in holding that Ex.P.29

stood proved, and the entries therein were entitled to great weight.

As regards the Birth Register of 1946, th<~ election-petitioner made repeated attempts to get the same summoned and produced in Court.

The process issued by the Court was returned with the report that the Register of 1946 was untraceable.

Thereafter, a direction was issued by the Court to trace and produce it.

A search for this record was made by the record remained untraceable.

The Election-Petitioner contended before the High Court that Shri John had by the exercise of his influence, prevented the production of this record. The High Court found this charge to be incorrect. Nevertheless, it held that the Public Birth Register of 1946 had been lost long ago.

This being the case, the non-production of the Birth Register of 1946, must be held to be a neutral circumstance.

Tl!e discrepancy pointed out by Shri Choudhury as to the date of the baptism of Shri John, takes us to the evidence produced by him. shri John brought on the record three documents, R1, R2 and R4.

R-1 is an extract from the Baptism Register kept by the Ovari-Tuticorin Diocese.

The document R -1 according to the High Court was inducted in a questionable manner, without even an application for it.

This was issued by the Parish Priest, Peter Royan (R W 5), and purports to be

a copy of an entry in the Baptism Register, which according to the admission wrung out from RW 5, had itself been re-written and copied F from the originaL The Parish Priest conceded that he had burnt the original because it was in a very bad condition.

The High Court found and we think rightly-that this explanation of non-production of the original was thoroughly unsatisfactory, and unbecoming of any Christian, more so, one connected with Church affairs, that by this

'unholy act' of burning the register which was a violation of Canon 777.

Paragraph 676, the witness (RW 5) had done "great disservice to G

Christianity and greater disservice to the cause of truth".

Since R-1 was only a copy of a copy (R 4), the preparation of which was itself suspect and the explanation about the non-production of the original was palpably unbelievable, these documents were rightly ruled out of evidence.

R.W. 2, Rev. Fr. Rosario stated that he positively remembered H that in the year 1943 when he was the Parish }Jriest, he ha~ baptis~ Shri John.

The witness was an old man. He had no Baptism Regts-

(1977] 3 S.C.R.

ter or any other contemporaneous record to refresh his memory with regard to an event which took place more than a quarter of a century back.

He was deposing to a fact in issue merely from memory.

Human memory being fallible, it was hazardous to accept his ipse dixit.

The oral evidence of the witness could not be preferred to the entry in the Marriage Register, Ex. P 29, showing that Shri John on the date of his marnage, which took place in 1972, was 26 year old and had been baptised in 1946. It is true that there is a slight discrepancy between the date of his baptism as entered in the Marriage Register and the date of his birth as admitted by him in the various applications he submitted for admission to various classes in College or for enrolment as an Advocate.

But there is no discrepancy with regard to the year of birth as well as baptism being 1946. In Ex.P. 29, the date of his baptism is entered as 19-10-46.

The biodata appearing in the book Ex.P.28, which, according to the publisher, RW-4, was entered by him on the basis of information derived from Shri John, gives h~ date of birth as 14-10-1946, while all the numerous public records, the declarations constituting the prior admissions of Shri John, produced in evidence by the Election-Petitioner, consistently show Shri John's date of birth as 14-5-1946.

We have been taken through the oral evidence rendered by Shri John (RW 1) and his elder brother (RW 3). Their interested testimony makes interesting reading.

Shri John was asked in cross-examination to state how he came to contest the Rajya Sabha elections ? He replied that, as usual, .in his,

village Ovari, he was having a discussion with the members of . his community to settle a dispute between owners of catamaran and meciianised boats. A suggestion was made to him that he should contest an election to Parliament as a representative of the fishermen community. Shri John told them that " .. an election to the Council of.

States is fast approaching and the only thing is I cannot enter the Rajya Sabha, because I have not complete4 the age of 30 years."

Shri John was further questioned by the Counsel

"Then what happened ?"

He replied:

"My eldest brother was one among those who were assembled there.

He told me along with another elderly gentleman, whose name I am not able to recollect now :

"What non-sense are you talking ? You have compfeted 30 years positively." Moreover, they told me in addition : 'We have to refer to the Registers kept in the Church'" .

. With this idea put into his head, the witness next morning along with his brother visited the village Church and met Rev. Fr. Peter

(R.W. 5) and asked for the Baptism Register relating to the witness.

Rev. Fr. Peter took out the Register, Ex. R-4, and turned the leaves, and to the surprise of the witness, he saw his date of birth noted therein as 14-5-1943. Thereafter, Shri John approached the ChiEf

THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 547

Electoral Officer, Madras, and made an application (Ex.P.23) on A 26-2-1974 for correction and change of the date of his birtli, as noted in the Electoral Roll, fro~ '14-5-1946' to '14-5-1943'. His application was allowed and the entry in the Electoral Roll as to age was amended accordingly on the 6th or 7th March 197 4.

On further cross-examination, Shri John frankly conceded that before seeing the Baptism Register in the second week of February 1974, he had all along been under the genuine impression that he was born on B 14-5-1946. It was only on seeing the Register that he came to believe that he was born in 1943.

It is to be remembered that this Baptism Register (R. 4) is the same, which was found by the High Court to be a suspicious record, prepared in suspicious circumstances, wholly unworthy of reliance.

RW. 3, the elder brother of Shri John also stated that when the elders of the village asked him to contest the election, he replied that c

he had not attained the proper age, i.e. "31 years" which was necesary to contest the election.

Immediately, the witness intervened : "What non-sense you are talking ? You have attained the proper age ..... . you must go and refer in the Church". About their going to Prieilt Rev. Fr. Peter Royan at the village Church and scrutinising the Baptism Register his version is more or less the same as of RW-1.

This witness, as already noticed, admitted that at the time of his brother, Shri John's marriage, he had alo signed the entry, Ex.P-29, in the Marriage Register on 6-4-1972. He further conceded that in this entry Ex. P-29, the age of the bridegroom, Shri John, was mentioned as 26 years.

He further conceded that in Ex. P. 29, the date of Shri John's baptism is noted as 19-10-1946. But the witness, wanted the Court to have it believed that he had signed this entry withc, ut looking into it.

This version was too incredible to be swallowed without demur. The conclusion was inescapable that on 6-4-1972, Shri J. D. Mohan, RW-3, the eldest brother of Shri John, whose parents were dead, knew that the particulars of this entry snowing his age to be 26 years on 6-4-1972, and the date of his baptism in 1946, were true.

That is why he and his brother John, without raising any objection, affixed their signatures thereto in token of its correctness.

We need not dilate on the question of Shri John's age further. AY aspects of this issue have been discussed threadbare by the High Court.

Suffice it to say, that from the evidence on record it stood clearly established that on the date of the scrutiny of the nominations, Shri John was less than 30 years of a_ge and in view of Article 84(b) of the Constitution he was not competent to contest the election for the Rajya bha.

His nomination was therefore improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it concerned the returned candidate, Shri John, materially affected the result of the election.

Shri John's election was thus rightly set aside by the High Court.

Now we come to the second question, whether Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared elected in lieu of Shri John whose election has been set aside ?

SUPREME COURT REPORTS [1977] 3 s.c.R.

Shri Ramaswami, learned Counsel for this appellant, has advanced alternat1ve arguments. It is subn1ttted that since Shri Mohana Rangam did not secure any vote at aU, he had ceased to be a continuing candidate and stood automatically excluded, leaving only Shri Subramanyam, sole continuing candidate in the field. It is emphasised that shri Rangam bas not filed any recriminatory petition.

In this situation, it is maintained, Shri Subramanyam would be deemed to have been elected, although he had secured only 300 votes.

Reference in this connection has been made to Rule 81(2) of the Conduct of Election Rules, 1961.

The alternative argument of Shri Ramaswami is that since Sbri John was not a qualified candidate, the votes cast in his favour have to be treated as thrown away, and even if both Shri Mohan Rangam and Shri Subramanyam are assumed to be continuing candidates, the surplus votes cast in favour of the five successful candidates had to be transferred and redistributr.d in favour of these continuing candidates.

It is urged that for this purpose the Court should send for and scrutini-se

the haJlot papers for further counting.

Shri Ramaswami further pointed out that the observations of this Court in Viswanatha Reddy v.

Konappa Rudrappa NadgandaC) to the effect, that the votes cast in favour of the disqualified candidate are to be treated as thrown away, are equally applicable to the elections for filling vacant seats in the Council of States, notwithstanding the fact that these elections are held according to the system of proportional representation with a single transferable vote whereunder there is no question of obtaining majority of valid votes, but only the required quota.

In support of his contentions Shri Ramaswami has copiously referred to the treatise, the Single Transferable Vote by K. V. Krishnaswamy Aiyar published in 1946, and the relevant provisions of the Conduct of Election Rules, 1961 (for short, referred to as the Election Rules).

The provisions material for our purpose are contained in Part VII of the Election Rules.

Shri K. V. Krishnaswamy Aiyar in his book, The Single Transferable Vote (1946 Edn.) page 23, sums up the general principles of this mode of election, thus :

"The Single vote is transferable from one nominee to another and that takes place in two contingencies where there would otherwise be a wastage of votes.

They are :

(I) when a candidate obtains more than what is required for his success and therefore has an unnecessary surplus; ~

(2) When a candidate polls so few votes that be has absolutely no chance and therefore the votes nominating him are liable to be wasted." ·:-

Relevant Rules in Part VII of the Election Rules are modulated on the principles enunciated by Shri Aiyar in the aforesaid boOk.

The

(l) A.J.R. 1969 S.C. 604.

TJ-liRU JOHN v. RETURNING OFFICER (Sarkaria, J.) 549

material provisions are contained in Rule 2(1)(c), 67, 70, 71, 73 A to 81 and 85. ~

Under the scheme and system envisaged by these Election Rules, each elector has only one vote, irrespective of the number of seats to be filled.

But that single vote is transferable from one candidate to another. The ballot paper bears the names of the candidates, and the elector marks on it his preferences for the candidates by denoting it B with the figures 1, 2, 3, 4 and so on against the names chosen by him and this denotation is understood to be alternative in the order indicated (vide Aiyar's The Single Transferable Vote), The figure 1 set by the elector opposite the name of a candidate means "first preference";

the figure 2 set opposite the name of a candidate, the "second preference", and so on [Rule 71 (ii) ].

TI1e minimum number of valid votes requisite to secure the return of a candidate at the election is C called the quota.

At an election where only one seat is to be filled, every ballot paper is deemed to be of the value of 1 at each count, and the quota is determined by adding the values credit to all the candidates, and dividing the total by 2, and adding 1 to the quotient, jgnoring the remainder, if any, and the resulting number is the quota, vide, Rule 75 ( 1). At an election where more than one seat is to be filled, every ballot paper is deemed of the value of 100 and the quota D is determined by adding the values credited to all the candidates, and dividing the total by a number which exceeds by 1 the number of vacancies to be filled, and adding 1 to the quotient ignoring the re~ mainder, if any, and the resulting number is the quota (Rule 76).

The computation in the preliminary process is as under :

The returning officer first deals with the covers containing the postal ballot papers, and then opens the ballot boxes, counts the baUot papers and sorts out and rejects the ballot papers found invalid.

A ballot papef Ts deemed invali<l on which- ·

(a) the figure 1 is not marked; or

(b) the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or

(c) the figure 1 and some other figures are set opposite the name of the same candidate; or

(d) there is any mark or writing by which the elector can be identified (Rule 73).

After. rjecting the invalid papers, the returning officer (a) arranges thi remammg ballot papers in parcels according to the first preference recorded for each candidate; (b) counts and records the number of

papes in each parcel and the total number; and (c) credits to each H candidate the value of the papers in his parcel.

He then determines

he quota in accordance with Rule 7 5 (1 ) , or Rule 7 6, if the election

ts to fill one seat or more than one seat, as the case may be.

If (at any election held for filling more than one seat) at the end of any count or a_t the end of the transfer of any parcel or sub-parcel of an excluded candtdate the value of ballot papers credited to a candidate is equal to, or greater than the quota, that candidate shall be declared elected (Rule 78). If at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus is transferred in accordance with the provisions of Rule 79, to the continuing candidates indicated in the ballot papers of that candidate as being next in order of the electors' preference [Sub-Rule (1) of Rule 79] "Surplus" means the number by which the value of the votes original and transferred, of any candidate exceed the quota [Sub-rule (6) of Rule 71]. "Continuing candidate" means any candidate not elected and not excluded from the poll at any given time [Sub-rule ( 1) of Rule 71].

If more than one candidate have a surplus, the largest surplus is .dt with first and the others in order of magnitude, but every surplus ansmg on the first count is dealt witth before those arising on the second count and so on.

Where there are more surJ>luses than one to distribu~. and two or more surpluses are equal, regard shall be had to the ongmal votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the values of their original votes are equal,, the returning officer decides by lot which candidate shall have his surplus first distributed. [Sub-rules

(2) & (3) of Rule 78]. "Original Vote", in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate.

If the surplus of any candidate to be transferred arises from original votes only, the returning officer shall examine all the papers in the parcel belonging to that candidate, divide the unexhausted papers into subparcels according to the next preferences recorded thereon and make a separate sub-parcel of the exhausted papers [Clause (a) of sub-rule

(4) of Rule 78]. "Exhausted paper" means a ballot par on which no further preference is recorded for a continuing candidate, provided that a paper shall be deemed to have become exhausted whenever-(a) the names of two or more candidates, whether continuing or not, are marked with the same figure and are next in order of preference; or

(b) the name of the candidate next in order of preference, whether continuing .or not, is marked by a figure not falling consecutively after some other fiure on the ballot paper or by two or more figures [Sub- Rule ( 3) of Rule 71].

The Returning Officer has to ascertain the value of the papers in each sub-parcel and of all the unexhausted papers. If the vaJue of the unexbausted papers is equal or less than the surplus, be shall transfer all the unexhausted papers t th~ value at which they were received by the candidate whose surplus ts bemg transferred. If the value of the unexhausted papers is greater than the surpJus, he shall transfer the sub-parcels of unexhausted papers nd the value arwhich each paper shall be transferred shall be ascertatned by dividing the surplus by the total number of unexhausted papers [Sub- Rule (4) of Rule 781.

Sub-Rule (5) indicates the procedure where the surplus of any candidate to be tranferred arises frol!l transferred as

well as oricinal votes.

All papers in th" parcel or sub-parcel of !Ul elected candidate not tansferred under •hi~ rule have to set apart as finally dealt with [Sub~Rule (7) of Rule 78].

THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 5 51

Rule 80 epeaks of exclusion of candidates lowest on the ooll: It A roods :

"80. Exclusion of candidates lowest on the poll." (1) If after all surpluses have been transferred as hereinbefore provided, the number of candidates elected is less than the required number, the returning officer shall exclude from the

poll the candidate lowest on the poll and shall distribute his unexhausted papers among the continuing candidates according to the next preferences recorded thereon; and any exhausted papers shall be set apart as finally dealt with.

( 2) The papers containing original votes of an excluded candidate shall first be transferred, the transfer value of each

paper being one hundred.

( 3) The papers containing transferred votes of an excluded candidate shall then be transferred in the order of the transfers in which, and at the value at which, he obtained them.

( 4) Each of such transfers shall be deemed to be a separate transfer but not a separate count.

(5) If, as a result of the transfer of papers, the value of votes obtained by a candidate is equal to or greater than the quota, the count then proceeding shall be completed but no further papers shall be transferred to him.

( 6) The process directed by this rule shall be repeated on E the successive exclusion one after ano'her of the candid1tes lowest on the poll until such vacancy is fi.lled either by the election of a candidate with the qota or as hereinafter provided.

(7) If at any time it becomes necessary to exclude a candidate and two or more candidates have the same value of votes and are the lowest on the poll, regard shall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded shall be excluded; and if the values of their original votes are equal the candidate with the smallest value at the earliest count at which these candidates had unequal values shall be excluded.

( 8) If two or more candidates are lowest on the poll and each has the same value of votes at all counts the returning officer shall decide by lot which candidate shall be excluded."

Rule 81 deals with the filling of the last vacancies. It may also be extracted in full because a good deal of argument is founded on it. It proTides:

"81. Filling the last vacancies.-( 1) When at the end of H any count the number of continuing candidates is reduced to the number of vacancies remaining unfilled, the continuing candidates shall be declared elected;

(1977] 3 S.C.R.

(2) When at the end of any count only one vacancy remains unfilled and the value of the papers of some one candidate exceeds the total value of the papers of all the other continuing candidates together with any surplus not transferred, that .candidate shall be declared elected.

(3) When at the end of any count only one vacancy re-- mains unfilled and there are only two continuing candidates and each of them has the same value of vote's and no surplus remains capable of transfer, the returning officer shall decide by lot which of them shall be excluded; and after excluding him in the manner aforesaid, declare the other candidate to be

elected."

The stage is now set for dealing with the contentions canvassed before us.

The first question that falls to be considered is : Whether Shri Mohana Rangam, on account of his failure to secure any vote in the first count is to be treated as excluded from the poll ? In other words, had he ceased to be a 'continuing candidate' within the contemplation of the Election Rules ?

D We have already referred to the definition of 'Continuing Candidate' in Rule 71 ( 1).

The definition has two elements which must be satisfied before a candidate can be said to be a continuing candidate. He should be a "candidate not elected" and further. he must not have been excluded from the poll at any given time.

Shri Mohana Rangam ful fils both these conditions.

Shri Ramaswami however, contended that this definition is to be interpreted and applied in the light of what has been said in Ru1es 74 and 81. The argument is that an essential pre-requisite to the continuance of a candidate is the al'otmeiit of a "basket" or "parcel" under Rule 74, and only such candidate is entitled to the allotment of a 'basket' who at the end of the count, gets some vote to his credit and opens his account.

Since Shri Rangam-proceeds the argumentdid not get any vote whatever, he stood automatically excluded and no question of allotting any "parcel" to him arose.

The contention must be repelled.

There is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the returning officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, he has not secured any valid vote. Sub- Rule (3) of Rule 75, to which reference was made at one stage, has no application to the instant case.

That sub-rule--which reauires the returning officer to exclude from the poll a candidate whose score is the lowest-governs the counting of votes where only one seat is to be filled and at the end of any count, no candidate can be declared elected.

Such is not the case before us.

Rule 80 also can have no application because it comes into operation at a stage "after all surpluses have been transferred".

That stage never arrived in the instant case because in the first counting itself, all the six seats were filled up, six candidates

_.,

THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 553

(including Shri John) ha\ing secured the requisite quota of first preference votes.

Nor did the stage for applying Rule 81 arise, because at e end of the first count, no vacancy remained unfilled.

We therefore, repel the contention of the learned counsel and hold

that Shri Mohana Rangam did not get automatically excluded. Both he and Shri Subramanyan were 'continuing candidates'. Shri Subramanyan could not be declared elected as he had not obtained the re~ B quired quota of 3,201 votes.

This takes us to the next question. Should all the votes .that had polled ill favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualified for election. be regarded as thrown away, and in consequence, the appellant, Shri Subramanyan, Who secured

300 votes ns against none obtained by Shri Mohana Rangam, be declared C elected?

...._ Again, the answer to this question, in our opinion, must be in the negative. It is nobody's case that the electors who vot~ for Shri John, had at the time of election, knowledge or notice of the statutory dis ... qualification of this candidate.

On the contrary, they must have been under the impression that Sbri John was a. candidate whose nomination D bad been validly accepted by the returning officer.

Had the electors notice of Shri Jolm's disqualification, how many of them would have voted foe him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and urwredictability.

In the view we take, we are fortified by the observations in this Court's decision in R. M. Seshadri v. G. V. Pai ('). In that case, the election of R. M. Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters.

The total votes polled were 12,153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named

in the ballot. At the final count Seshadri received 5643 votes and his nearest rival, G. V. Pai received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertained.

Bfore this Court, it was contended that the election of Seshadri having been set aside, G. V. Pai, who had oolled the next highet number G ,.- of votes should be declared elected.

Hidayatullah C.J. speaking for the Court, rejected this contention with these observations :

"This (question) will depend on our reaching the conclusion that but for the fact that voters were brouqht throue:h this corruot oractice to the poltinQ: booths, the result of the

election had been m:1terialtv afl'ecteif. Tn a !<ino-h'! mfernhle H vote, it is very difficult to say how the voting would have gone,

(1) AIR1969S.C.692, .tpage701

SUPREME cOURT REPORTS-

. because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, 'those candidates would have won. We cannot order a recount because those voters were not free from complicity.

It would be speculating to decide how many of the voters . were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated."

The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not C qualified to contest the election.

In any case, Shri Subramanyan was neither the sole continuing candidate, nor had he secured the reQuisite quota of votes.

He cannot th}refore11 be declared elected.

The dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan.

In that case, D the election in question was not held according to the system of a single transferable vote.

There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification; Shah

J. (as he then was) speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for hin1 were unaware of the disQualification, and the candidate securing the next highest number of votes :E was declared elected.

The learned Judge was however careful. enough to add: ·

"This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified; on proof of disqualification all the votes cast in his · favour will be discarded and the candidate securing the next highest number of votes will be declared eJected. In such a case, question of notice to the voters may assume, significance, for . ' the voters may not, if aware of the disqualification, have voted for the disqualified candidate." ·

The ratio decidendi of Viswanatha v. Konappa is applicable only G where (a) there are two contesting candidates and one of them is disqualified, (b) and the election is on the basis of single non-traizsferable vote.

Both these conditions do not exist in the present case. As already discussed, Shri Subramanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote according to which a simple majority H of votes secured ensures the success of a candidate, but by proportional representation with single transferable vote, under which system the success of a candidate normally depends on his securing the requisite qu1tta.

- I

11!

THIRU JOHN V. RETURNING OFFICER (Sarkaria, J.) 555

However, the principle underlying the obiter in Viswanatha v.

Konappa, which we have extracted, is applicable to the instant case A because here, after the exclusion of the disqualified candidate, two continuing candidates were left in the field.

For all the reasons aforesaid, the appeals fail and are dismissed.

In the peculiar circumstances of the case the parties are left to their own costs.

S.R.

Appeals dismissed

THIRU JOHN & ANR

RETURNING OFFICER & ORs

April 12. 1977

R. S. SARKARIA

JASWANT SINGH, JJ.

Article 84(b)

Representation of the People Act

Sections 83, 97, 100 and 101

Conduct of Election Rules, 1961

R. Mohanarangam

Mohanarangam

John

March 12, 1974

Art. 84(b)

s. 100

Representation of Peoples Act, 1951

s. 101

s. 97

s. 83

Subramanyam

Mohanarangrun

s. 101

Art. 84(b)

s. 101

Art. 84(b)

sections 17 to 20

section 21

Conduct of Election Rules, 1961

Mohanaran- F gam

Mohanaran!l"am

Subrahmanyam

Sbri John

Mohanaraogam

Sarvashri Subrah manyam

Mohanarallgam

AIR 1969 SC 692

R. N. Chaudhary

V. D. Klwmw

T. N. S. Srinh•(tsavaradadwry

G. Ramaswamy

C. Lakslzminarain

S.R.L. Narain

Vinet't Kumar

T. N. C. Srini

asavarudacharya

S. C. Lakslunindrain

S. R. L.

Narayan

M. S. Nurasimalwn

A. V. Rtmgam

A. Subslzaslzini

J. M. Klwmuz

SARKARL\

Khadar Sha

Khaja Mohideen

V. Subrahmanyam

C. D. Natarajan

S. Ranaganathan

G. Laksbmanan

D. C. John @ Valampuri John

R. Mohan Rangam

V. Subrahmanyam

D. C. John

s. 100

Representation of the People Act, 1951

s. 101

the Representation of the People Act, 1951

March 9, 1974

Article 84(b)

s. 97

s. 83

Mohana Rangam

s. 101

JohH

SUPREME COURT REPORTS [1977] 3 s.c.R.

Art. 84(b)

Rajya Sabha

s. 1

S!tri John

May 14, 1946

May 14, 1943

Chowdhary

Sec. 21

Rama Prabhu

[1977] 3 S.C.R.

3

Indian Christian Marriage Act 1872

G. K. Swami

T.E.L.C. Kabis High School

Varalatril Kalaignar

Chaudhury

Rosario

Sbn John

THIRU JOHN

Sarkaria

John

St. Francis Xavier Church

Choudhury

Peter Royan

Parliament

Peter

Peter Royan

J. D. Mohan

Article 84(b)

V. Subramanyan

Ramaswami

Subramanyam

Rangam

Conduct of Election Rules, 1961

Mohan Rangam

K. V. Krishnaswamy Aiyar

Conduct of Election Rules, 1961

Aiyar

THIRU JOHN V. RETURNING OFFICER

Subramanyan

Subramanyan

Jolm

Sarv

R. M. Seshadri

Madras Legislative Council

Seshadri

G. V. Pai

Hidayatullah

Vasanta Pai

Shah

Subramanyan appellant


STATE OF ORIS$A AND ORS.

ARAKHITA BISOI

April 14, 1977

(M. H. BEG, C.J., A. C. GUPTA ANO P. S. KAILASAM, JJ.)

B Oriss.1 Land Reforms Act, 1960 as amended by Act 13 of 196S and Act 29 of 1916-Revisional powers ul s 59-Whether an order passed by lhe appellate authority u/s 44 of the Act whicli ha.s become final uls 44(2) is capable of rel'isiOn by the Collector u/s 59 before the amendment Act 29 of

1916--Construction of S. 59. ·

Under Section 43 of the Orissa Land Reforms Act, the Revenue Officer determines the ceiling surplus and on _the termination of the proceedings there~ under, the Revenue Officer u/s 44(1) confirms the draft statement; u/s 44(2) an appeal lies to the prescnbed authority against the order under sub-section

(1) and_ subject to results of such appeal, if any, order. of the Revenue Officer shall be final.

Section 58 provides a right of appeal to any person aggrieved by an order passed under any of the Sections enumerate.d in &':b~ section (I). Sub-section ( 1) of S. 59 provides that the Collector may roVJSe

any order passed in appeal by any officer below the rank of a Collector uer tfiis Act.

Section 59(1) also empowers the Board of Revenue to rev1Se any order passed by the Collector.

Sub-section (2) enables the Collector or the Board of Revenue suo nwtu or on the application of the party concerned call for and enmine the record in respect of any proceedings_ under the Act and modify, annual reverse or remit for reconsideration. . ·

In the proceedings u/s 38 of the Act_ the plea of the resporideD.t landlord that there was a partition between him and his sons was rejected by the Revenue Officer who determined the surplus extent as 12.08 standard acres.

The appeal preferred before the Sub-Divisional Officer having failed. the res~

pondent filed a revision before the Additional District Magistrate. 1he Addi:ional Magistrate held that the appellate orders u/s 44 are final and that no revision lay to him.. The writ petition filed against this order filed by the respondent was aUowed by the 0-issa High Court by its order dated lS-7-1976 holding that the Additional Magistrate had powers to revise an order of the appellate authority passed u/s 44 by virtue of the powers conferred on bin1 under .s. 59 of the Act. . 'Dismissing the appeal by certificate, the Court.

HEID : (i) The language of S. 59(1) of the Orissa Land Reforms Act is \\'ide enough to enable the Collector to revise any order including an appellate order under S. 44 of the Act. [561 BJ ·

(ii) In appying. the rule of ha!monious -constructio~ with a viw .to _giye effect to the . mtention : of the legislature the court will not be 111c; ttlied tn putting a construction which would restr'ct the revisionary jurisdiction of the Collector and the Board of Revenue.

[560E] • •

In the instant case, the Act is of expropratory _nature and the determination of the excess lands is done by the Revenue Officer.

The. legis1ature intended that anr. error or irregularity should be rectified by higher authorities Uke the Collector and the Board of Revenue.

[560E] ·

1. K. Cotton Spinning & Weaving Mills Co. Ltd. v. Stafe of U.P. & Ors. [1961] 3 S.C.R. !SS held not applicable.

The Benal Tmmunity Cotnpany Ltd .. v. The State of Bihar & Ors. [t9SS] . 2 S.C.R .• 603 referred to.

(iii) It cannot be said that there is any conflict between S.- 44(1 l and S. 58 ina.;:much oo S. 44( 1) provides that the ordE>r of the Revenue Officer shall be fmal, subject to the result of appeal u/s 44(2), while no such finJ.lity

'.;

ORISSA v. BISOI (Kailasam, !.) 557

is mellticm.ed in the case of an appeal u/s 58. 'fhe provision as to finality u/s 44(2) is provided for so that in the absence of the agrieved party proceeding further in the matter, the consequences of the vestmg of surplus lands u/s 45, the preparation of the Compensation A-; sessment Roll, the settlement of surplus lands etc. can be proceeded with. [559 D-F]

(iv) The amendment to S. 44(3) by the Amendment Act of 1975 making it clear that a right to revision is provided for orders passed u/s 44(2) does not make any difference.

The amendment could not mean that S. 44(2) as B it originally stood did not provide for power of revision to the Collector u/s 59, [560 A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 903 of 1976.

Appeal from the Judgment and Order dated the 15-7-1976 of the Orissa High Court in O.J C. No. 698 of 1976.

G:· Rath, Advocate General, Orissa, R. K. Mehta for the Appellants.

Vepa Parthasarthy and C. S. Rao for Respondents.

The Judgment of the Court was delivered by

KAILASAM, J.-This appeal is by the State of Orissa represented by the Secretary, Revenue Department, against the judgment of a Bench of the Orissa High Court on a certificate of fitness granted by it.

The respondent herein is a land-holder whose ceiling surplus was determined by the Revenue Offi= under section 43 of the Orissa Land Reforms Act, 1960, as amended by Act 13 of 1965 and subsequently by Act 29 of 1976.

The Revenue Officer rejected the plea of the respondent that there

was a partition between him and his sons and determined the surplus extent as 12.08 standard acre.. The respondent prefen-ed an appeal before the Sub-Divisional Officer and the Sub-Divisional Officer confirmed the order of the Revenue Officer and dismissed the appeal.

Against the order of the appellate authority the respondent filed a F revision before the Additional District Magistrate, Ganjam.

The Additional District Magistrate held that the appellate orders under section 44 were final and that no revision lay to him. The respondent thereupon filed a petition under Articles 226 and 22 7 of the Constitution challenging the order of the Additional District Magistrate rejecting the revision petition. A Bench of the Orissa High Court by an order dated 15th July, 1976, allowed the writ petition holding that G the Additional District Magistrate had powers to revise the order of the appellate authority passed under section 44 by virtue of the powers conferred on him under section 59 of the Act. The High Court came to this conclusion that a revision was entertainable under section 59 by the Additional District Magistrate even before the amendment introduced by Orissa Act 29 of 1976. the details of which will be referred to later.

The only question that arises in this appeal is whether an order passed by the appellate authority under section 44 which has become

9-502 SCI/77

A final under section 44(2) is capable of revision by the Collector under section 59 before the amendment of the Act in 1976.

Section 44 runs as follows :-

"44. (1) On the termination of the proceedings under Section 43, the Revenue Officer shall by order confirm the draft statement with s.uch alterations or amendments as may have been made ther.ein under the said Section.

(2) An appeal against the order of the Revenue Oflicer under sub-section (I) confirming the statement if presented within thirty days from the date of the order shall lie to the prescribed authority and subject to the results of such appeal, if any, the orders of the Revenue Officer shall be final.''

Under section 44(1) the Revenue Officer confirms the draft statement and under section 44(2) an appeal lies to the prescribed authority against the order nnder sub-section (I) and 'subject to results of such appeal, if any, order of thei Revenue Officer shall be final.

Section 58 provides a right of appeal to any prson aggrieved by an order passed under any of the sections enumerated in sub-section (I).

As the decision in this case will depend upon the construction that is put upon section 59 we extract section 59(1) and (2) in full.

"59. Revision :

(1) The Collector may revise any order passed in appea 1 by any officer below the rank of a Collector under this Act and the Board of Revenue may revise any order passed by the Collector under this Act and the period of limitation for such revision shall be as may be prescribed.

(2) For the purposes of sub-section {1) the Collector or the Board of Revenue as the case may be may suo motu or on application of either party or any interested person call for and examine the record of any matter in respect of any proceedings under this Act as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed thereon and if in any case it appears that any such decision or order shall be mOflified, annulled, reversed or remitted for reconsideration. t:c CoJ!eGtor or Board of Revenue as the case may be. may consider accordingly."

Sub-"section ( 1) provides that the Collector may revise any order passed in appeal by any officer below the rank of' a Collector under this Act.

It also empowers the Board of Revenue to revise an order passed by the Collector under the Act. Sub-section (2) enables the collector or the Board of Revenue suo motu or on the application of the party concerned call for and examine the record in respect of any proceedings under the Act and modify, annual, reverse or remit for reconsideration such a decision to the lower authority. The section as it stands does not put anv restriction on the power of revision by the CollectO<" or th Board of Revenue for it states that the Collector or the Boan! of Rewnue' may revise any order passed under this Act which would

ORISSA v. A. BISO! (Kai/asam, J.) $59

include an order passed under section 44(2). Again sub-section (2) A -0f section 59 provides that the Collector or the Board of Revenue may examine the record of any matter in respect of any proceedings under the Act which would include the proceedings under section 44(2).

The submission of the learned counsel for the appellant is that the power of revision under section 59 is restricted to an appeal that is disposed of under section 58 and is not available against an order passed under section 44(2). The learned counsel very strongly relied on the wording of section 44(2) which provides that the order of the Revenue Officer shall be final subject to the result of an appeal provided under section 44(2) and therefore submits that no other relief is available to the aggrieved party. The learned counsel in contrast referred us to section 58 where the order of the lower authority is not stated to be final subject to the result of the appeal.

As no finality is providd for orders passed on appeal under section 58, the submission was that a revision under section 59 is available for those orders but orders passed under section 44(2) are final and they are not subject to revision under section 59.

There is no doubt that section 44( I) provides that the order of the Revenue Officer shall be final subject to the result oJ! an appeal under section 44(2) while no such finality is mentioned in the case of an appeal uuder section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Ao! and sub-section (2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act.

As the power of revision is not restricted we are unable to accepf the contention of the learned counsel that because of the wording of section 44 (2) providing that the order of the Revenue Officer subject to the result of the a11peal would be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44 (2) is provided for so that in the absence of the aggrieved party proceeding further in the matter the consequences of the vesting of surplus land's under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded witl1.

The learned counsel drew our attention to the amendment to the Orissa Act by Act 29 of J 976.

The Orissa Land Reforms .(2nd Amendment) Act, 1975, and submitted that the amendments introduced to section 44, 45 and 59 would make it clear that the legislature understood that the sections as they stood before the amendment did not enable tlie Collector to exercise revisional jurisdiction over orders passed by the appellate authority under section 44(2) of the Act. Bv the amending Act section 44, sub-sections (2) and (3) arc amended.

Sub-section (2) of section 44 as it originally stood provided tliat

subiecf to the result of such appeal, if any, the orders of the Rcv_enue Officer shall he final and sub-section (3) provided that the draft statement as confirmed or as modified in appeal shall be final and conelusive.

By the amendment sub-section (2) is recast and sub-section ( 3) provides that the draft statement as confirmed or as modified in appeal on revision shall be final and conclusive.

The amendment specifically provides for a revision. The amended sub-section (1) of section 59 provides that on an application by party aggrieved by any order passed in an appeal under any provision of this Act filed within the prescribed period, the prescribed authority may revise such crder.

Though the amendment to section 44(3) makes it clear that a right to revision is provided for orders passed under section 44(2), we do not think that this could mean that 'section 44(2) as it originally stood did not provid& for power of revision to the Collector under section

59. In our opinion, amendment does not make any difference.

The learned counsel for the appellant submitted that section 44(3) is in the nature of a special provision and should be construed as an exception to section 59 on the principle of harmonious construction.

In support of this plea the learned coun'sel referred to the decision in The J. K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P. & Ors.('). In construing the provisions o fclause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect, and a construction which defeats tbe intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of _harn1onious construction with a view to give effect to the intention of the legislature the court will not be justified in putting a constmction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and theJ determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only proper to presume that the legislature intended that any error or irregularity should be rectified by higher authorities like the Collector and the Board of Revenue. In our view, if wi\l be in conformity with the intention of the Jeirislature to hold thai section 59 confers a power of revision of an order passed under section 44(2) of the Act.· The learned counsel next referred to a decision of this Court in The Beni?al Immunity Company Limited

v. The State of Bihar and Others.( 2 ) The rule of construction rs stated at p. 791 in the following terms by Venkatarama Ayyar J. speaking for the Court :-

"Tl is a cardinal rule of constmction that when there are in a Statute two provisions which are in conflict with each other such that both of them canner stand, they should, if possible, be so interpreted that effect can be given to both. and that a cons1'ruction which renders either of them inopera.tive and useless should not be adopted except in the last resort.

This is what is known as the rule of harmonious construction. One application of this rule is that when there

(1) [l961J (3) ~.C'.R.185.

(2) [1955] 12) SCR 601,

ORISSA v. A. BISOI (Kai/asam, !.) 561

is a law generally dealing with a subject and nother dealing A particularly with one of the topics comprised therein, the genernl law is to be construed as yielding to the special in respect of .the matters comprised therein."

Construing scctjon 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the above decision.

We agree with the view taken by the Orissa High Court that the language of section 59 (1) is wide enough to enable the Collector to revise any order including an appellate order under section 44 of the Acl.

In the result the appeal is dismissed with costs. .

S.R.

Appeal dismissed.

STATE OF ORIS$A AND ORS

ARAKHITA BISOI

April 14, 1977

M. H. BEG, C.J.

A. C. GUPTA ANO P. S. KAILASAM, JJ.

Land Reforms Act, 1960

s 59

s 44

s 59

S. 59

Section 43

s 44(1)

s 44(2)

Section 58

S. 59

Section 59(1)

s 38

s 44

s 44

s. 59

S. 59(1)

S. 44

S. 58

S. 44( 1)

s 44(2)

s 58

s 44(2)

s 45

S. 44(3)

s 44(2)

S. 44(2)

s 59

Rath

R. K. Mehta

Vepa Parthasarthy

C. S. Rao

KAILASAM

State of Orissa

section 43

Orissa Land Reforms Act, 1960

Additional District Magistrate, Ganjam

section 44

Articles 226 and 22

Orissa High Court

15th July, 1976

section 44

section 59

section 59

section 44

section 44(2)

section 59

Section 44

Section 43

section 44(1)

section 44(2)

Section 58

section 59

section 59(1)

section 44(2)

section 59

section 44(2)

section 59

section 58

section 44(2)

section 44(2)

section 44(2)

section 58

section 58

section 59

section 44(2)

section 59

section 44( I)

section 44(2)

section 58

section 59

section 44

section 59

section 44

section 45

section 44, 45 and 59

section 44(2)

section 44

section 44

section 59

section 44(3)

section 44(2)

section 44(2)

section

59

section 44(3)

section 59

clause 23

section 59

section 44(2)

Venkatarama Ayyar

section 44(2)

section 59

section 44


K VENKAMMA

THE GOVT. OF ANDHRA PRADESH & ORS.

April 14, 1977

[\I. R. KRISHNA !YER AND JASWANT SINGH, JJ.l

Motor Vehicles Act, 1939-Whether a route who.'ie tennirii lie wilhi11 the sanze state but lrhich traverses in its course one or more other states be designated as "inter state" route-"[nter State Route"-Meaning of-Whether tlie proposed Nationalisation sc!te1ne of Nellore-Ra1napuram route passing over a short distance of 8 K.M. through Tamil Nadu invalid for want of approval of the Central Govern1nent under s. 68-D(3)-Motor l"ehiCles Act, 1939 Ss. 2 28(A), 63(1)(4), 68-D(3) and S. 20 of the Road Transport Corpvrntiom (Central Act) Act-Scope of.

The Nellore-Ramapuram route passing over a short distance of 8 .K.111. through Tan1il Nadu was proposed to be nationalised by the Andhrai Pradesh Governntent. The appellant an existing private operator on the route challenged the scheme on the ground that the route being an inter-state route, noncompliance wilh S. 68-D(3) of the Motor Vehicles Act, 1939 aborted the Nationalisation. The High Court held that the decisive test turned on \vhether both the termini fall within the same state and it did in this case and so on question of inter-state route arose.

On appeal by certificate the court

HELD : (l) (a) The route Nellore-Ramapuram is an inter-state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and {c) the nationalisation cannot become effective over the strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerried authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to S. 63 ( 1 ) of the Motor Vehicles Act. [567H, 568 A-Bl

(2) The definition of 'Route' in S. 2(28A) of the Act is not a notional line "as the crow flies'' but the actual highway as a motor vehicle traYeres from one ternlinus to ainother.

A route is transformed into an inter-state one, if the highway it covers passes through more than one state. An inter-state route may l; ie of the categories either connecting two states or traversing t\vo or more states. [564 D-E]

(3) Ordinarily-not invariably-the two termini test is ai working solution and not an inflexible formation.

The terinini test may lead to strange results, fatal to federal ideas.

A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, \vithout doing violence to language, geography and federalism.

And in the absence of a str.-utory definition of inter-state route non-violence to English and conformanr:e to commonsense dictate the adoption of the conventional n1eaning that if a route traverses more than one state it is inter-state. [564 B-C, D]

(4) Undoubtedly, where the termini fall in different states the route is inter-state.

But that does not exclude other categories of inter-state route such as where it crosses a state other than the originating state although gets back into it later. If the territory of more than one state is covered even if both the termini eventually fall within the same stnte, the route is inter not intra-state. [564H, 565Al

Kazan Singh [1974) 2 S.C.R. 562; Aswatha11arayan v. State i 19661 1 SCR 87 op. 100-101. explained.

(5) If the whole of the route lies within a single state it is intra. state and not inter-state, even though the road over which the route lies runs beyond the borders of that single state as national highways do.

It is elementary that there can be inter-state routes which run into or through more than one state. A part of that long route rnaiy itself be a separate route and B may fall wholly \Vithin a single state in which case the former may be inter-state while the latter will be an intra-state route.

[565G-H, 566A]

(6) 1'here can be no doubt that the scheme notified by one State will, even in the case of an inter-state route, operate to the extent it lies within that State.

Its extra-territorial effect depends on securing of prior Central Government approval under the proviso to Section 680(3). tlowever, the permit granted in orie state may still be valid in another state, if the condition specified in the 2nd proviso to section 63 ( 1) is fulfilled.

The portion of the route, in the instant case, falling outside Andhra Pradesh (both termini being within that state) is admittedly less than 16 k.m. and so no question of countersignature by the State Transport Authority or the Regional 'fransport Authority of Tamil Nadu arises.

The portion of the interstate route which fe1l \Vitbin Andhra Pradesh stand nationalised and consequently exclude private operators.

But that strip of the inter-state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to S. 63(1) of the Motor Vehicles Act. [567 A-B, E-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 796 of 1977.

V. Ramana Reddy and M. L. Varma for the Appellant.

P. P. Rao and G. N. Rao for Resp<:mdent 1-3.

• P. Ramachandra Reddy, Advocate General and A. P. B. Parthasarathi for Respondent No. 4.

The Judgment of the Court was delivered by

KausHNA IYER, J.-=-Nationalisation of road transport service is of strategic significance to the country's development and new legal issues arise as private operators, threatened with elimination, battle against such schemes.

One such obstacle to the proposed nationalisation of the route Nellore-Ramapuram by the Andhra Pradesh Government is the subject matter of this appeal by certificate, the High Court having considered it substantial and novel enough to qualify under Article 133 of the Constitution.

The point raised is short, the order under appeal brief, but the problem i's thorny, with extra-territorial overtones and anomies in application.

Can a route, whose termini lie within the same State but which traverses in its course one or more other States, be designated as inter-state route ? If yes, then the exercise in nationalisation proposed by the respondent State cannot rr, atcrialise into an 'approved scheme' unless as desiderated by the proviBo to Section 68D(3) of the Motor Vehicles Act, 1939 (hereinafter referred to as 'M. V. Act'), the previous approval of the Central Government is secured. Here, admittedly, no such approval has been obtained and the notified route does pass over a short distance of about

. F

8 km., through Tamil Nadu. The r_oute Nellore-Ramapuram was, according to counsel for the existing private operator, an inter-state route and non-compliance with Section 680(3) of M.V. Act aborted the nationalisation. The counter-submission by the State which appealed to the High Court was that the decisive test turned on whether both the termini fell within the same State and it did in this case. and so no question of inter-state route arose.

At the first flush, an inter-state route may be of two categorics. either connecting two states or traversing two or more states. Black's Legal Dictionary considers inter-state to mean 'Between two or more states; between places or persons in different states; concerning or affecting two or more states politically or territorially.' And that accords with commonsense . The 'termini test' as presenied by counsel for the State, may lead to strange results, fatal to federal ideas. A route which originates in Srinagar, runs down South to Kanya Kumari and rises North to end again in Kashmir, completing a Bharat dar.l!wn, cannot sensibly be called an intrastate one, without doing gross violence to language, geography and federalism. And in the absence of a statutory definition of inter-state route, non-violence to English and conformance to commensense dictate the adoption of the convention:tl meaning that if a route traverses more than one state it is inter-state.

The statutory sensitivity to one State permitting stage carriages from within its territory into another is reflected in Section 63 (1) and ( 4). 680(3) proviso and Section 20 of the Road Transport Corporation Act. 1950.

We are skirting the constitutional question of extraterritorial powers but are confining ourselves to a mere interpretation of the provisions of the Act. 'Route' is defined in Section 2 (28A) to mean a • line of travel which specifies the highway which may be traversed by a motor vehicle between one terminus and another. The point is that it is not a notional line 'as the crow flies' but the actual highway as a motor vehicle travels from one terminus to another. The inference is inevitable that a route is transformed into an interstate one, if the 'highway it covers passes L'irough more than one State .

This easy breakthrough is seemingly obstructed by two rulings of this Court relied on by counsel for the State, although the High Court while granting the certificate, felt that these decisions did not rea.Jly cover the case on hand.

Khazan Singh(') dealt with a case where the termini of the concerned routes were located in different states and so, by any test, were inter-state routes.

There, in passing and not as ratio of the case, an observation fell from the Court :

"An inter-state route is one of which one of the termini falls in one State and the other in another State."

Undoubtedly, where the termini fall in diffennt states the route is inter-state. But that does not exclude other categories of inter-state routes such as where it crosses a State other than the originating State ·--------- (!) [1974] f2l S.C.R. 502

although gets back into it later. If the territory of more than one State

is covered, even if both the termini eventually fall within the same state, the route is inter, not intra-state. Ordinarily-not invariablythe 'two termini' test is a working solution, not an inflexible formula.

Aswatharwrayan v. State (') had something to say on inter-state route :

"An inter-State route is one in which one of the termini is in one State and the other in another State. fn the present case both the termini are in one State. So it does not deal with inter-State routes at all. It is urged that part of the scheme covers roads which continue beyond the State and connect various points in the State of Mysore with other States. Even if that is so that does not make the scheme one connected with inter-State routes, for a road is different from a route.

For example, the Grand Trunk Road runs from Calcutta to Amritsar and passes through many States.

But any portion of it within a State or even within a District or a sub-div;'sion can be a route for purposes of stage carriages or goods vehicles.

That would not make such a route a part of an inter-State route even though it lies on a rood which runs through many States. The criterion is to see whether the two termini of the route are in the same state or not. If they are in the same State, the route is not an inter- State route and the proviso to S. 68-D(3) would not be applicable. The termini in the present case being within the State of Mysore, the scheme docs not deal with inter-State routes at a11, and the contention on this head must be rejected." (emphasis supplied).

The facts and discussion bear out abundant, ly that there is nothing in the ruling to suggest that even if a route traverses territory of another State it is n0ne-the-lcss an intra-State route if the points of beginning and ending fall within one State. It is a fallacy so to construe that decision.

What is repelled in that case is the contention that if a high-way run through many States, any portion of that high-way which is picked out for running a bus service as a route, should also be deemed to be inter-state for the only reason that such a route (though its entire length falls within a single State) overlaps a road which crosses many States. The very definition of route in Section 2 (28-A) is sufficient to extinguish that argument and this Court rightly. if we may so with respect, rejected it.

We cannot confuse between road and route. If the whole of the route lies within a single State it is intra-state and not inter-state, even though the road over which the route lies runs beyond the borders of that single State as national highways do.

In Abdul Khader Saheb( 2) a totally untenable submission was put forward and unhesitatingly turned down that if the nationalised route fell within a single State it should nevertheless be regarded as inter- State route for some mystical reason, viz., that it overlaps a longer route which is admittedly an inter-State route. It is elementary that

(I) (t966] (!) S.C.R. 87 at PP.100-101.

(2) [1973] 2 S.CR. 925.

there can be inter-state routes which run into or through more than one State. A part of that long route may itself be a separate route and may fall wholly wthin a single State in which case the former may be inter-state while the latter will be an intra-state route.

In Abdulkhader' s (') case the Court observed :

" .. The Bellary scheme provides for nationalisation of an intra-State route and not an inter-State route and the aforesaid provision can have no applicability .

. . . . . . If part of the scheme covers routes which continue beyond the State and connect various points in the State of Mysore with those in the other State it does not make the scheme one connected with inter-State Route. It is sought to be argued from this that even if Bellary-Chintakunta route which is shown as item 34 in Bellary Scheme has been nationalised it does not make the scheme one connected with inter-State route. Stress has been laid on the example given that the Grand Trunk Road runs from Calcutta to Amritsar and passes through many Sates and any portion of it within a State can be a route for purposes of stage carriage but that would not make such a route part of an inter-State route even though it lies on the road which runs through many States.

The above argument can possibly have no validity so far as the present case is concerned.

The scheme which was under consideration in the decision relied upon was in respect of an intra-state route. It appears to have been argued that as the scheme was concerned with an inter-state route the approval of the Central Government was necessary as required under the proviso to Section 630(3) of the Act. This Court held that since the termini were within the State of Mysore the scheme did not deal with an inter-state route at all and no question arose of the applicability Gf the proviso to s. 680(3). In the present case there is no scheme of nationalisation relating to the inter-state route from Bellary to Mantbralaya. The Bellary Scheme is confined to the intra-state routes, one of those being the Bellary-Chintakunta route. It may be that that portion overlaps the inter-state route from Bellary to Manthralaya but so long as it is an intra-state route it could be nationalised by the State of Mysore under the provisions of s. 680."

No further comment is necessary.

We are inclined to the view that the route, passing, as it does through part of Tamil Nadu, is inter-state. What is the effect of this finding over the scheme of nationalisation ? Wholly invalidatory ? or else, what? The proviso to Section 680(3) i.e. Central Government approval has not been compiled with and so qua inter-state route the nationalisation does not become effective.

Even so, two factors can together salvage this nationalisation scheme.

(I) [1973] (2) SCR 925.

There can be no doubt that the scheme notified by one State wiil, even in the case of an inter-state route, operate to the extent it lies within that State.

Its extra-territorial effect depends on securing of prior Central approval under the proviso to Section 680(3). That being absent, the permit granted in one State may still be vlid in another State if the condition specified in the 2nd proviso to Section 63 (1 ). is fulfilled. We may as well extract Section 63(1) to that extent relevant.

"63. Validation of permits for use outside region in which granted-( 1) Except as may be otherwise prescribed, a perm.it granted by the Region"1 Transport Authority of any one region shall not be valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region and a permit granted in any one State shall not be valid in any other State unless countersigned by the State Transport Authority of that other State or by the Regional Transport Authority concerned : x x x ...... Provided further that where both the starting point and the terminal point of a route are situate within the same State, but part of such route lies in any other State and the length of such part does not exceed sixteen kilometres, the permit shall be valid in other State in respect of that part of the route which is in that other State notwithstanding that such permit has not been counter-signed by the State Transport Authority or the Regional Transport Authority of that other State," -

The portion of the route falling outside Andhra Pradesh (both termini being within that State) is admittedly less than 16 km. and so no question of counter-signature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu State arises. The conclusion follows that the portions of the inter-state route which fall within Andhra Pradesh stand nationlised, and consequently excludes private operators. But that strip of the inter-state route which falls within Tamil Nwu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport buses could ply on that strip also in view of the 2nd proviso to Section 63(1) of the M.V. Act.

We may point out that section 20 of the Road Transport Corporations Act (a Central Act) provides for extension of the operation of the road transport service of a corporation of one State to areas within another State. We are not directly concerned with such a scheme as is contemplated by that provision since passage over a neighbouring State if the length of uch intersection does not exceed 16 km. is saved by the 2nd proviso to Section 63(1) of the M.V. Act. We, therefore, reach the conclusion that (a) the route Nellore-Ramapuram is an interstate route; (b) the scheme of nationalisation is operative even in the absence of the previous approval of the Central Government, so

far as the portions which fall within Andhra Pradesh are concerned; and (c) the nationalisation cannot become effective over the tiny strip in Tamil Nadu and private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State; but ( d) the Andhra Pradesh Sate Transport Corporation may ply its buses over the Tamil Nadu enclave even without counter-signature exemption having been granted in that behalf by the 2nd proviso to Section 63(1) of the M.V. Act. In this view, the appeal must substantially fail except to the extent of the little modification we have indicated, which does not profit the appellant.

In the circumstances, while dismissing the appeal, wc direct the parties to suffer their costs throughout.

S.R.

Appeal dismissed.

K VENKAMMA

THE GOVT. OF ANDHRA PRADESH & ORS

April 14, 1977

JASWANT SINGH, JJ

Motor Vehicles Act, 1939

s. 68

Cles Act, 1939

Ss. 2

S. 20

Nellore

S. 68

Motor Vehicles Act, 1939

Ramapuram

Central Government

Andhra Pradesh

Tamil Nadu

S. 63

Motor Vehicles Act

S. 2(28A)

Srinagar

Kanyakumari

Kashmir

[1974) 2 S.C.R. 562

Section 680(3)

section 63

Andhra Pradesh State Transport Buses

S. 63(1)

Motor Vehicles Act

CIVIL APPELLATE JURISDICTION

V. Ramana Reddy

M. L. Varma

P. P. Rao

G. N. Rao

P. Ramachandra Reddy

A. P. B. Parthasarathi

KausHNA IYER

Andhra Pradesh Government

Article 133

Section 68D(3)

Motor Vehicles Act, 1939

Nellore-Ramapuram

Section 680(3)

Black

Kanya Kumari

Section 63

Section 20

Section 2

Khazan Singh

Mysore

Calcutta

Amritsar

S. 68

Section 2

Abdul Khader Saheb

[1973] 2 S.CR. 925

Abdulkhader

Bellary

Chintakunta

Section 630(3)

s. 680(3)

Mantbralaya

Manthralaya

State of Mysore

s. 680

Section 680(3)

Section 680(3)

Section 63

Section 63(1)

Andhra Pradesh

Section 63(1)

section 20

Road Transport Corporations Act

Section 63(1)

Section 63(1)