DAULAT RAM CHAUHAN

ANAND SHARMA

January 16, 1984

(S. MURTAZA FAZAL ALI AND RANGANATH MISRA, JJ.]

Represemation of the reople Act 1951 (43 o/1951) Sections 82(h), 86and123(2).

Election Petition-allegations of corrupt practices against two candidates-Candidates not impleaded as parties to elettion petition-Elecaon petition whether liable to be dis1nissed.

Corrupt Practices-Allegations of-To be proved like a crin1ina/ charge without

_'f ad1nitting of any doubt.

-,.{

,_

-~,

• •.

Practice & Procedure :

Pleadings in Election PetUions-Allegations of corrupt practice-Necessity to -he clear and specific. ·

The respondent filed an Election Petition challenging the election of, the appellant who was declared clcted to the State Assembly on the ground that the appellant, his. election agent and other persons along with two other candidates

made libelous slogans at a rally and displayed pamphlets to alienate the voters from the respondent and this constituted a corrupt practice within the meaning of section 123 of the Representation of the People Act, 1951. Upholding the . respondent's contention the High Court set <1.Side the eleCtion.

Tn the appeal to this Court, a preliminary objection was raised on behalf of the appellant .that since the two candidates who \Vere alleged to have coriimited corrupt practices had not been made parties to the Election Petition, the petition

should haye been disn1issed in lbnine for non cbn1pliance with the requirements of section 82(b) read with section 86 of the Act.

Overruling the preliminary objection :

HELD: 1. The combined effect of section 82(b) and section 86 of the Act is that once allegations of corrupt practice are made against a candidate it is incumbent on the lec.tio11 petitioner t? join h!~ as a party ad failure to do so woul~ lead to the d1sn11Ssal of the Electron Petition i.:inder section 86. But before section 82(b) or section 86 could come into play it must be proved that the allegations of corrupt practice made agai1.1st the candidate amounted to corrupt practices as contemplated by the provisions of section 123. [423 F-G]

Section 82(b) co11.tains the salutary provision of audi a/teram parrem and ff requires that an allegation m, ust be proved to the hilt in the presence of the Person

alfected, failing which the election petition will stand dismissed. [ 426 EF]

. 3.

Tn orde~ that n act of the cand.idate may amount to a corrupt practice, It must be committed either by the candidate himself, his agent or by any other person wfth./he consent of the candidate or his election agent. An allegation of corrupt practice must be proved like a criminal charge without admitting of any doubt.. [424 CJ ·

.4. The Election Petition must contain the followi.ng pleadings: (1) Direct

an~ detailed nture of corrupt practices as defined in the Act, (2) details of every important particularly tex. the tin1e, place, names of persons, use of words and expressi6n_s, etc. (3) that the. corrupt practices were indulged in by the candidate himself, or his authorised agent or any other person with his express or implied .consent. {428 E-FJ • 5.

A person may, due to sympathy or on his own, support the candidature of a particular candidate. but unless a close and direct nexus is proved between tJ1e act of the person and the consent given to him by the candidate or his election agent, the same would not amount to a pleading of corrupt practice as contemplated by law. It cannot be left to time, chance or conjecture for the court to draw an inference by adopting an it'l.volved process o~ reasoning. The aliegation must be clear and specific that the inference of corrupt practice will admit of no doubt or qualm. [ 428 G-H]

In the instant case, it was shown that the hvo candidates who participated in the rally mighr have shouted libelous slogans. But there is nothing to show that they were election agents or workers of the appellant or that they participated or shouted slogan with the express and implied consent of the appellant. Whenever, there is a rally, crowd or a gathering a nun1ber of persons participate.

That by itself would not give rise to an inference that their participation or presence was at -the instance of the person in whose favour the cro\VS gathered or the rally was organised. [429 CDf

Udhav Singh v. Madhav. Rao Scindia, [1976] 2 S. C. R. 246 ; Haji C. H.

Mohammad Kaya v. T.K.S.M.A. Muthukoya, [1979] I S.C.R. 664 and Samant N.

Balakrishna etc. v. George Fernandez&: Ors., (1969] 3 S.C.R. 603; refcrrcd to.

Civ1L .APPELLATE JURISDICTION : Civil Appeal No. 453 of 1983,

From the Judgment and Order dated the 28th December,. 198f of the Himachal Pradesh High Court in Election Petition No. 1120 1982.

).., -

Shanti Bhushan, N. M. Ghatate and S. V. Deshpande for the )...

Appellant.

H M.C. Bhandare, T. Sridharan, Ms. S. Bhandare and Ms. CK Suchqhta for the Respondents.

D. Jl.. CHAUHAN v. ANAD SHARMA (Fazal Ali. J.) 421

The Judgment of the Court was delivered by

FAZAL ALI, J. This election appeal is directed against a judgment dated December 28, 1982 of the Single Judge of the Himachal Pradesh. High Court, WPO was assigned as an election Judge under the provisions of the Representation of the People Act (hereinafter referred to as the 'Ac.t'). The appe~I arises out of an election to the Himachal Pradesh Legislative Assembly from the Simla constituency. The poll was held on M; y 19, 1982 and the result was dedared on May 21,

1982 whereby the appellant was declared elected by a margin of 2745 . votes. The respondent, Anand Sharma. filed an election petition in the High Court challenging the election of the appellant on theground that he (appellant) was guilty of indulging in Stveral corrupt practices as envisaged .by the provisions of the Act. The High Court, after .going through the entire evidence of th\: parties and considering the documents, came to the conclusion that the allegations of corrupt practices against the appellant were fully proved and accordingly set aside his election, hence this appeal to this Court by the elected candidate, Daulat Ram Chauhan. We may also mention here that two other candidates; besides others, K.D. Batish and Poora!i Chand .Sood (hereinafter referred to as 'Balish' and 'Sood' respectively) were also in the field but they had withdrawn.

Mr. Shanti Bhushan, appearing for the appellant, raised a preliminary objection which, according to him, if accepted, was sufficient to dismiss the election petition of the respondent in /imine. We had decided to go into the validity of the preliminary objection because. if it was accepted then the election petition would have to be dismissed and it would no.t be necessary to hear the appeal on merits but if the preliminary objection was overruled the~ the appeal would .have to be heard on merits. .

The only important point raised by the counsel for the appellant before us is that as the election petitioner (respondent) had alleged that Batish and Sood, committed corrupt practices with the consent of the appellant and yet they were not made parties to the election petition, the High Court should have dismissed the lection petition in limine under the provisions of s.82(b) read with s.86 of the Act.

It is not disputed before us that Batish and Sood were candidates for election to the Simla constituency and that they were not made parties to the election petition filed by the respondent in the High Court. Section 82(b) runs thus :

"82. Parties to the petition

A petitioner shall join as respondents to his petition.

(b) any other candidate against whom allegations of corrupt practice are made in the petition."

Section 86 provides that where there is a violation of s. 82, the High Court shall dismiss the petition.

The dominant question for consideration is as to whether or not the respondent had alleged that Balish and Sood indulged in corrupt practice as defined in s.123 of the Act.

Mr. Bhandare, appearing for the respondent, however submitted that the allegations made against the aforesaid persons pid not amount to corrupt practice as contemplated by s.123 because from the avertments mae by the respondent there is nothing to show that these two persons had indulged in corrupt practice either at the instance or with the consent of the appellant, or his election agent.

In view of the arguments of the parties the matter lies within a very narrow compas.s because Mr. Shanti Bhushan with his usual

. , -

ingenuity and brevity has invited us to consider the effect of the allega- ,. ....

E tions made in para 16 of the election pertition read with para 4, which "

according to him, is a sort of an index to para 16. It appears that an additional issue regarding the allegation contained in para 16 was • raised in the High Court in the following terms : ~

"Whether any allegations of corrupt practices have been made in the petition against Sarva Shri Kali Das Balish. and Puran Chand Sood who were admittedly candidates at the election. lf so, to what effect?"

However, this additional issue was later on not pressed on liehalf of the respondent and it was conceded that the court may take G it as established that no allegations of corrupt practices were made against Batish nd Sood: ln this view of the matter, the High Court without going into the issue decided it against the appellant. The ' counsel for the appellant submitted that once an issue was raised it was not open to the parties to make any concession as, according to H law, the issue had to be tried whether pressed or not. In support of his contention, the learned counsel relied 0n a, decision <5f this Court

. ~\

' t

D.R. CHAUHAN v. ANAD SHARMA (Faza/A/i, J.).. 423

in Udhav Singh v. Madhav.Rao Scindia'" .where the Court made the following observations while interpreting section 82 of the Act :-

. "Behind this provision is a fundamental principle .;; if natural justice viz., that nobody should be ·. condemned unheard. A charge of corrupt practice against a candidate, if .established, ntails serious penai consequences. It .has :

the effect of debarring hiin from being a candidate ... at an election 'for a considerably long period. That is, why, s.82(b) ia clear, perempiory terois, obligates. an election-petti.oner to join as respondent to his petition, a candi.date against . whom allegations of any corrupt practice are made in the petition. Disobedience of this mandate, inexorably attracts. s.86 which commaiJds. the High Court, in equally imperative . language, to~

"dismiss an election petition which does n0t comply with th~ provisions uf section 82."

The Tespondent canot by_ consent, express or tacit, aive

tese provisions or Condone a noncompHance ith .the imperative of s.R2(b). Even inaction, lathes or delay on the part of the respondent in pointing out the lethal defect of hon-joinder cannot relieve the Court of the statutory obligation cast on it by s.86. As soon as the : non-compiia.nce with S:82(b) comes or is broughtto the notice of the cour.t, no' matter in what'inanrier and at w)lat stage, during . the penq.ency o.fthe pe.tit.ion, it is bound to dismiss the petition in unstinted obedience to the.C:ommai:d of s. 86."

This Court furthr held that orice allegations of corrupt' practice were made against a candidate it was incumbent on the election petittioner t~ join hnn as a party and faiiure to do so would autcmatically lead to the dismissal of bis petition under s. 86. There can be no doubt that this is' the combine.d effect ofs.82(b) and s.86 9f the Act.

'.

But before s.82(b). o~ s:86 could come into play in the instant case, it must be pro.ved whether. or not the allegation of corrupt pctices . G made against . Batish and Sood am9unted to . corrupt practice as .contemplated by the provi.sions of sA23 of the Act.. It was thus

argued that the 'a]legations made. in para ]6 come within s.123(2) which may be extracted thus :- , · .H

(I) ['1976] i S.C.R. 246: . '

...

•, ' \

..i

424 A

• B

"123. Corrupt practices-The following shall be deemed to be corrupt practices for. the purposes of this Act :- .

(2). Undue influence, that is to say, any direct or indire, ct interferente or attempt to interfere on the part of the candidate or his agent, or of any otherperson with the consent of the candidate.or his election aget with the free exercise of . any electoral right :"

It is manifest that in order that an act of the candidate concerned may amount to an allegation of corrupt practice', it must be committed . .4 C either by the candidate l\imself, his agent or by any other person ~.·

with the conse11t of the candidate or his election agent. Jn . order to ~

determine whether the ingredients of s. 123 have been fulfilled in the present case, it. may ?e necessary to wade t11rough the contents of para 6, the relevant portions of which may be extracted thus :

"16. That after tlie conclusion of the meeting, a rally was organised by the respondent, which passed through the main bazar of Simla town. Jn the rally also, t11e following persons of the Bhartiya Janata Party participated : . . .

 The persons in the rally including the respondent raised the . following slogans :- f

'INDIRA KAISi HAI PHULAN DEVI JAISl HAI' 'DESH KA NETA KAISA HO ATTAL BIHARI JAlSA HO' 'JITEGA BHAl JlTEGA DAULAT RAM CHAUHAN JJTEGA'

The aforesaid libelous slogans and displaying of pamphlets were made to alienate the v<>ters from the petitioner.'.'

 An analysis of the aforesaid extracts shows that there is no clear and specific allegation that Batish and Sood' took active part in . raising libelous slogan and displaying the pamphlets with the express

)..

D. R .. CHAUHAN v. ANAD .SHARMA (Faza/ Ali, J.) 425

or implied consent of the appellant or of his election agent. It is common knowledge.that whenever.there is a rally or a crowd or a gathering,

~ a nuinber of persons attend or participate in the same but that by itself would not give rise to .an irresistible inference that their participation or presence was at the. instance of the person in whose favour the crowd gathered or the .. ralfy was organised. Mr. Shanti Bhushan however stressed the fact that'the words."persons in the rally including the respondeni raised the Jibelou.s slogan" would lead to an inevitable conclusion that the persons who participated in the rally raised the slogan with the express or implied consent of the appellant.. We, _,. are, however, unable to• draw this inference because it is well settled that an allegation of corrupt practice must be proved like a criminal

ycharge without admiWng of any doubt. '

:;. .. \ .

In Haji C.H. Mohammad Koya v. T.K.S.M.A. M1it/111koya11 ' this Court made the following observations :

"It is well settled by Jong course of decisio.ns of this

Court that such practices must be clear!~ alleged with all D the necessary particulars and proved .nM by the standard . ·", of preponderance of probabilites but beyond reasonable doubt." ' .

I . .

Jn these circumstances, therefore, before s.82 could apply it was incumbent. o'n the part of respondent to allege that the appellant had • given his consent to Sood or Balish for raising' the slogan. There .is _.., ·:also no allegation in the passage, extracted above, that Bath or'

Sood had .obtained the consent of the appellant or his election agent ..

• \ .

Realiing the futi.lity and the frailty of his arguents M~. Shanti

~ Bhushan tned to call mto aid the averments made m para ll of the electio'n petition, .ihe relevant portion of which may be extracted F thus: .4

":~ . "That the respondent, his election agent and other pmons with the consent of the respondent or his election apnt have committed several corrupt practices with the full . knowledge and conseni of t.he respondent and his. election agent, which have prejudiciously affected the election of the

petitioner .... The. catalogue of corrupt practices committed by the respondent, his election agent and other persons with "the consent of the respondent and his election agent

(I) (1979J 1 S.C.R .. 664 .

SUPREME COURT REPORTS

[1984} 2 S, C.R . . . ' A is detailed hereinafter."

. . . ~1 Even if this allegation is taken a tits face value, there is no mention at all about Sood or Batish having taken the consent 0f the appellant ;.: for indulging in corrupt practices. Strong reliance was placed on .the second part° of the. recitals which disclose t.hat there was a ca ta''

logue of corrupt practices committed by the appellant. his election agent. and othei persons as detailed iii the petition. The learned counsel for the appellant wants us to read para 4 in conjunct; on wit)1~

para 16 and then to arrive at the. conclusion that libelous slogans .. were shouted t)y Sood and Ratish with the consent or the appellant: .' ..

We arc however not .in a position. to acccp( this s0mewhat complex 1. process of reasoning. In our opinion, such a disjointed scheme of averring particulars so tnat one has to read one.part of the allegation\

wilh an0ther ari.d then. by joining the two pr0duce a particular result to infer an allegation of corrupt practice is not contemplated bys. 123 · .. . of the Act and is in fact foreign to the principle of giving all necessary

particulars and statement of facts, viz,, time, place,_ ma1iner, mode and the consent of the candida, te or h.is election agent. Suen an -, i. approach wuld naturall)I suffer from the vfoe of vagueness. Jt is even against the well settled rules of pleadings .to interpret or read °Suc.h a s;:rious allegation as that of fraud by joining one. port.ion of

th~ al\cg1t;0n with another and then connect the head of one wi.th tho t1i1 of the other in order to. present. a composite picture. The da'ngr of inaing such an approach would raily amount tQ basing the. decision of 'the court on pure conjectures or spcculatioir and is . )>.. agai1'st •the very spirit and ienor of s.82(b) of the Act. This scdion contains a salutary provisign. which is. that nobody should be condemned unheard so as. to amount to an in. fraction of th.e well settled r..I.. practice of audi alteram partem (rules of natural justice) and requires ... • that an 11lle-gatio11 mst be prnved to the hilt in the presence. of the ·

person.affected, failing wh; ch the electio, n petit:on w0uld stand.dismissed. lf such a conscque.1ce were to follow it is obvious.that 'the -allega.tions n1ust be interpreted as they are ad n'ot by adding or f .subtracting one frein the other. · ·

. ' . . . . . • Moreover, the scheme followed by the respondent would itself show.that the allcgationi.inJiara 4 .are not meanfto be an inde~ pr glossary for the recitals in para.16 because wherever other corrupt· practices have. been averred, it has been clearly ment_ioned' in those very averments that the consent of the. appel\ailt or his ekcfion.age1\t . }.. .was obtained. In: para J6, however, this is completely absent. For instance, in para.IS where the respondent has made a cleat allegation . . . .

. ;

D: R. CHAUHAN v. ANAD SHARMA (Fazd/ Ali, J.) 427

--I regardi, ng th~ slanderous campaig~ against him, he has in th~ dearest .

A possible terms mentioned that these acts were committed by the appellant, his.election agent and workers with his tacit consent. .In this connection, the relevant portio.n of the averineht may be extracted thus .. :

"That the respondent, his workers and .election gent did not c.hoose to rest there and it appears l\ad devised wellknit and calculated slanderous campaign against the petitioner. ·-The respondent,. his election agent and wo.rkers with his .• '( consent to further the prospects of the responde_nt by denig- -· rating the petitioner in the eyes of pepple launched a character assasinatimi ..... : The re.spondent, his agent 'and workers knew that the contents contained in Annexure 'G'. are fa!Se and the respondent does not beHeve it to be true."·

- ..l!'.

If, therefore, the intention of the respondent was to allege corrupt practice as contempiated by Jaw against ·.Ba ti sh and. Sood, the. averment in para 16 should have been either.identical or of the nature of D averments cotained in para J8{which is-in respyct of other persons).

This is yet another reason why w.e cannnt accept the argument or Mr. Shanti Bhushan that the .averments of pa1'a 16. must be read ...(.with the averments made in para 4.

. . \ '.

In Samantl'{. Balakrishna etc. v. George Fernandez & Ors. 1'' this

 E .... urt poinfrd out thus : · . . .

.. -t

"But the corrupt practices are vie.wed separately according as to who commits them. The first class consists of. corrupt practices committed by the candidate or his election, agent.or any other person with the consent of the. candidate or his elcctlon agent. These, if established,. void the election without any further condition. being fulfille.d.

In the scheme of election law they ate separate corrupt practices which cannot' be sai<l to grow out of the material facts relatd to another•person. 1'11blication of false statements by an agent is one cause of action, publication of false statements by.the candidate is quite a diffetrent cause

(I) [1969] 3 S.C.R. 603.

. H.

ofactiou. -Such a cause of aetion must be alleged in the material facts before particulars may be given. One cannot under the cover. of particulars of one corrupt practice give "' particulars of a new corrupt practice. They constitute. different cause off action. . - • ..

Since a single corrupt practice committed by the candidat<l'. by his election agent or by another person with the consent of the andidate or his election agent is fatal to the election, the case must be specifically pleaded and strictl:; proved .. If it has not been pleaded as part of the material facts, particulars of such corrupt pi actice cannot be supplied later on."'

We must remember that in .order to constitute corrupt practice, . which entails not only the dismissal of the elct;.on petition but also other serious consequences like disbarring the candidate concerned from contestng a fµture election for a period of six years, the allegations must be very strongly and narrowly construed to the very spirit and, letter of the law. In other ivords, in order to constitute corrupt practices, the followi11g necessary particulars, statement of facts and essential ingredients. must be coi)tained in the pleadings :'--

(I) nirect and detailed nature of corrupt.practiCe as defined in the Act, ·

(2) details of every important particular must be stated giving the time, place, names of persons, use of words and expressions, etc. ·

(3) it must clearly appear. from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself (b) his autho.rised election agent or any other person with his expres~ or implied consent. •

A person may, .due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the con.sent given J. to him by the candidate or his election agent,· the same would. not amomH to a pleading of corrupt practice as con tern It cannot be left to time, chance or corijecture for l b ' . , 1 an inference by adopting.an.involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt

. .l.

D. R. CHAUHAN V. ANAD SHARMA (Faza/ .A/i, J.) • 429

. practice will irresistibly admit ?f no doubt or qualm.

As a logical conseguence of the principles enunciated by us, jt follows that where the .allegation of fradulent practice is open to two equal possible inferences, the pleadings of corrupt practice must fail.

For instance, A, or in this case Sao~ or Batish; joined or participated .

. or was present in an election rally or crowd and may have shouted B slogans on his own without taking the consent of the candidate concerned, this would. not be. a corrupt practice within the. meaning of s.1J3(2) because the element of consem is wholly wanting .

( , Applying these tests to the averments 'made. in para 16, th~ .. .• \ . position is as follows. : . c

"·

That Batish and Sood doubtless .participaled in the rally and may have shouted libelous slogans but there is nothing to show that they were ejther the election agents or workers of the appellant or that they participated 6r shouted skigans with the express or. implied consent of the candidate. ·

In these circumstances, it is difficult to accept the argument of Mr. Shanti Bbushan thatreading the averments in para 4 alongwith

pra 16, the irresistibfo inference would be that Sood and Batish had shouted the slogans with. the consent of th.e appellant.

The fundamental core and tlw pivotal basis of the argument Of the appellant tliat in view of the specific allegations of corrupt practices having been made by the respondent and yet Batish and

Sood were not made parties to the election petitioi:ds not proved and, therefore, the requiremeni of s.8!2(b) read with s.86 Of the At has not

. F been fulfilled in this case so as to reject the election petition at the very behest .

We are, therefore, in agreement with the argun1ents of Mr.

Bhandare, counsel for the respondent, that the averments contained in para 16 cannot by any ;!retch of imagination be construed to. constitute allegations of corrupt practice as envisaged by s.123(2) . of the Act. The additional issue is, therefore, decided against the

appelli'nt.

For the reasons given above; the preliminary. objection raised H by Mr. Shanti Bhushan is overruJ¢ and it is held that the election

...

430 SUpRBME COURT. REPORTS •

(1984]2 $.C.R.

A petition was not .liable to be dismis.sed in ljmine under s.86 of the Act.

The appeal will now. be posted for hearing. on: merits .in respect of · otheF iss\jes. . ·

N. V.K.

Preliminary ob jection overruied.

. .

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.... ·.

,. •

DAULAT RAM CHAUHAN

ANAND SHARMA

January 16, 1984

S. MURTAZA FAZAL ALI

RANGANATH MISRA, JJ.

Represemation of the reople Act 1951

Sections 82(h), 86

section 123

Representation of the People Act, 1951

section 82(b)

section 86

section 82(b)

section 86

section 86

section 82(b)

section 86

section 123

Section 82(b)

[1976] 2 S. C. R. 246

(1969] 3 S.C.R. 603

Shanti Bhushan

N. M. Ghatate

S. V. Deshpande

H M.C. Bhandare

T. Sridharan

S. Bhandare

CK Suchqhta

ANAD SHARMA

Fazal Ali

FAZAL ALI

Pradesh Legislative Assembly

Simla

Anand Sharma

Daulat Ram Chauhan

K.D. Batish

Poora!i Chand .Sood

Shanti Bhushan

Batish

Sood

Batish

Simla constituency

Section 82(b)

Section 86

s. 82

Balish

Bhandare

Sarva Shri

Kali Das Balish

Puran Chand Sood

Batish nd Sood

section 82

section 82

s. 86

s. 86

s. 123

Simla town

Bhartiya Janata Party

[1969] 3 S.C.R. 603

D. R. CHAUHAN V. ANAD SHARMA

Batish

Shanti Bbushan

Bhandare

N. V.K.


STATE OF MAHARASHTRA

IA YANTl LAL AND OTHERS

January I 7; 1948

[S; MURTAZA FAZAL ALI AND RANGANATH MISRA JJ.).

. ........._ Forward Cont; acts (Reguliition) ACt, i9_52 Section 22A .. and 22B as if!serted bji · Y 1heAmending Act 6_2 of 1960, .:__ Whether the two newly iitserted sections exclude tht

..... \, irpplicatiOn of secii"on S(i) Of Criminal Procedure f!ode--Whelhf!'.' the pte'sumptio"ns.

provided under section 228 of the Act would be available in_ respect of /:Jaoks of account

and docume':lfS_ seized ilz investigations u11de.r the Code, -'.where _actio'n has not been

taken under section 22A.

Jf Dismising t.he appeal by Speci8.I Leave, the". Court,_

HELD : 1 By stions 22 A and 22B, inserted into the Forward Contracts (Regulation) Act; 1952, by the Amending Act 62 of 1960, the app!ication"ofthe provisibns of secti0n_5(2) of the Criminal .Procedure Code in resPect o.f offences under the Act was not excluded. Therefore, even with these provisions.in the Act, it wa1 . open tothe prosecution to make investigations under the Code and in exercise of the powers vestedunder Section 165 therf, sear-ch..at)d seizure could be effectc:; d .

[436H, 437 A]·

2. Seetion 22A of the Forward:.Contract (Reglllaiion) Act is a Special pro vision prescribing a . P"rticular procedure .. Section 22B(1) doeS refer. to documents seid from any pla. ce as referred to ins. 22Aq). dr<lin8ril.y, iri a criminal

' \ prsecution the. burden to prove the charge is on te pros"ecutor. , A special rule of

cvidcehas been providd by raising a presumption as a result of _which the burden whichordinitrily lay o~ the prOsecutioh has been shifted to the defence.

[~5C-E]

The mannC~ in -which~ the two riew .. prviions .have come into thC .ct." theplicement of tbe two proyjsionS; reference to books of aCcollnt an.Ci dOcuffientJt

seizea from any place in s. 22B(l) which are words used in s.22A(i), and tho fac -that Parliament has prescribed a specia1 procedute of authorisation by a magistrate and has prescribed s.pecia~· cred_cnce. to be given to these documeiits seized pursuant to the particu1.ar procedure prescribed, Jead to the oti1y conclusion that. the benefit of s. 22B of the Act is confined to books of account and doCu.menrs which have.been seized Pursuant to a warrant authorising a police officer pot below the artk of sub-inspector as prescribed in s.22A(l) of the Act .. A sia1. mode was prescribed requiring magisterial warrant; althotisation of a police officer not.below the rank_ of a sub-inspector, the Plaee to be searched.was required to be specified in warrant; magisterial cOntrol was prescribed overthe investigation and when these condi~ . . tions Weft'. satisfied,.the special rule of evjdenCe becae S:pplicable,. .. "[435 ~-G] .,

. Admittedly the~. is n~ indication in. s.",22B of the. Ac't as .to Whether eQii:ies in

A the books of account and doculnents seized without the aid of s.22A(l} would have the benefit of such presumption. But since a special procedure has been indicated in -s.22A and s. 22ij which is with referenc; e to s. 22A has.provided the special n1ode .of evidence, that in order to have the benefit of s. 22B of the Act, the prosecution must have carried on the' search and seizure of.ihe books of account and documents in the manner J:?fescribed uncfef s. 22A(l) of the Act. Unless the st)ecial procedure has bn followed, the special rule of ev:idencd under s. 22B of the Act would not B be attracted: [ 4J5H, 4l6A-Bl

3. Since it would be open to the prosecution to carry on investigation of offences under the nor1nal pfov:isions _of tha Code as also by invoking the Special • Provisions in s. 2iA of the Act, 'two separate positiods would arise 'vith reference 1 to seiz.ed books of account and .other'documents. Whens. -22A of the Act has been invoked the presumpti_on under s.22B of the Act would. arise. when investigation C has been carried under the Code without the aid of s. 22A of the Act, the presumption . "-\ would not arise and the prosecution will have to prove the documents according to ' the Ordinary rule of evidence. There is nothing anon1lous because in one case the ...-

norinal rule ofevidence would apply and in.the other, whefe the spedal _inode has

bee~ invoked, the presumptions would arise. Such a situatiOn is no.t unkno\vn in law. [~36 B, D, El .

State of.U.P.' & Anr. v. Cha1nbers ofCofnmerce (Regd.), Chandausi, District Moradaba4 & Ors. (1970) All. LT. 182; M.R. Pillai v. M/s. Moti/al Vrijbhukhandas & Ors., AIR 1 '70 Bont 24 approved.

The Bullion & Agriculrural Produce ExChange Private Ltd. v. The Forward Markes Commission, Bombay&: 'Jrs., AIR 1968 338 overruled.

E. •i lCRIMlNAL APPELLATE JURISDICTION ! Criminal Appeal No. 447of1979. )' . .

Appeal by Special leave from the Judgment and Order dated . the lst/'>nd February, 1979 of_ the Bombay High Court (Nagpur. Bench) . i. in Criminal Appeal No .. 76, ?1-30, 33 and 36 of 19'.75 and Criminal F Revision Application Nos. 82 & 83of1975:

. 1).P. Rana and M.N. Shroff for the Appellant.

N.M. Ghatate and V.D. Deslipande for tlie Respondents.

G The Judgment of the Court was delivered by ·

RANGANATH MISRA,· J. This appeal by special leave at. the instance of the State of Maharashtra is directed. against the decision .

of a Full Bench of the High Court of Bomba!Y dealing with an interes- tillg question under the l<orward Contracts (Regulation) Act, 1952 H ('Act' for sh6rt). Several prosecutions were launched against tha respondents for offences punishable under sections 20 and 2L of the ,

.. -

MAHARASHTRA v. JAYANTl LAL (Rangtinath Misra, J.) 433

Act on the. basis of investigaiion carried under section 5(2) of the A Code of Crim; nal Procedure, 1898 ('Code: for short).and seillirecif .documents as a result of search conducted under s.165 of.the Code.

Two cases ended in conviction anc\ seven prosecutions resulted in acquittal. Against the conviction two separate appeals we~ c.arried to the Court of Sessions which were dismissed. . The convicted accused carried two cdminal revisions to tl.ie High Court. Against acquittal in other prosecutions the State preferred appeals to the High Court.

The seven criminal appeals and the two criminal revisions were ultimately referred to Full Bench for deciding the question raised, viz., as to whether or not the cases in question would be governed by t.he provisions of s.21B of the A.ct.

The Full Bench has come to the following. conclusions (State of Maharashtra v. Jayantilal Popat/al Chandrani, etc)">': . . ' .

(!) By sections 22A and.21B inserted into the Act by Amending Act 62 of 1960, the application of the provisions of s.5(2) of the Code in respect of offences under the Act was. not excluded. Therefore, even with these provisions in the Act it was open to the. prosecution to . make' investigation. under the Code and in exercise of powers vested under s.165 thereof search. and seizure could be effected;

(2) The manner of search and seizure under the Code and

under s.22A of the Act were different. The new provisions were inserted into the Act with a view to obviating the difficulties in successfully prosecu!irtg the delinquents- . for offences under the ACt ; ·

• (3) T, ne presumption contemplated in s. 22B is confined to books of account and other docJiments seized pursuant to a warrant issued.under s.:22A (1) of the Act and not to documents seized iri exercise of powers under the Code.

The High Court referred to an earlier decision of the Division Bench of the same Court where it had been held that the insertion of the two provisions by Act 62 of 1960 did not .have the effect of. excluding the application of the Code to prosecutions under the Act . but in view of the conclusions indicated above, it did not agree with

(1979) Cr!. L. ;, 1231. .

SUPREME COURT REP OR TS . [1984] 2 s.c.R ·

'A the earlier, view of th~ Division Bench ihat 'the presumption under s. 22B of the Act also. e_xtended to docu.ments seized in invesiigation . under tiie Code without the aid of s.22A of the Act.

B . '

...

Neither counsel contended before us _that the insertion of ss. 2_2A and 22B had the effc.t o.f excluding the application of s, 5(2) of the Code. We are in agreement with th<: view expressed by the Fun Bench .that the provisions of th~ Code still apply to investigation of offences under the .Act. :

 " . The only question ;_, hich has bee~ seriously debaied at tlie Bar is as to whether the presumptions' provided under s. 22B of the Act C would be available. in.respect of. books o( ace-0unt and documents seized in .investigations under the Code where action has not been taken under s. 22A of the Act ? The two sections inserted by Act 62 of 196_0 provided : · .

' -

. .

"22A. . (1) Any presidency magistrate oi a magistrate of the. first class may, by warrant, authorise any police officer not below the rank of sub'inspector to. enter upon

nd search any place where books. of acco1.mt. or other docume_nts relating to forward contracts or options in goods entered into in contravention of the provisions of this :,\ct, may be or may be reasciuably suspected, to be, and such· police officer may seize any such book ·;, r document, if in his opinion;, it relates_ to any such forward contra(:! or option in . goods;

(2) The provisions of the Code -0f Criminal Procedure, . 1898, shall, s-0 far as may be, apply to any searth or seizure made under sub-section (!) as they apply to any seaich or ·• seizure .inade under the authority of a warrant issued under section 98 of the said Code; '

:22B. (1) Where arty_ b_ookS of accoun, t or other docu, ments are seized from any place and ihere are entries _therein making reference to quantity., qnotati_orts, rates, _months of delivery., receipt or payment of differences or sale or purchase :or goods or option in g(\ods, such books of account or other documents shall be admitted in evide11ce without witnesses having to appear to prove the same;' and such entries shaH be. prima fade evidence of the matters, transactio_ns. and

aecouts purported to be iherein, record_ed;

.~ . • • )

- . (

MAHARASHTRA v. JAYANTI LAL (Ranganath Misra, J.) 435

(2) In any trial for an offence punishable under section 21, it shall be presumd, until the . contrary is proyed, that the place in which the books of account or other documents referred to in sub-section(J) were seized, was used, and that the pewns found therein were present, for the puq1ose. of comitting the said offence." . .. . There is no dispute that these provisions. came >to be inserted when it became difficµlt to successfolly prospcute. offender.! under "the Act on account of want ; of evidence, particularly with reference to the .. accounts w1d othr documents. Both _the sections .\vere intro-

_duced at the same time. Section 22A(I) empe>wers the presiqency magistrate cir a magistrate of the first. class, b.y warrant, to authorise

 C . .a police officer not" below the rank of a sub-i.nspector to en_ter_ upon and search any place where books o.f , iccount or oiher documents relating to forward contracts o.r options i'n goods entered into in contravedtion of the ptovisios of the Act may be or may reasonably be suspected to be availabie. This indeed is a special provision pres~ cribing a particular procedure.· Section 228(1) does refer." to docu-

. D . ments seized from any place as referred to in s. 22A(I) .. Ordinai:ily, in a criminal pro8'cl1tion the burden to prow the charge is .on the . prosecritor. A speciai rule of evicjence has been provided l)y raising

of a presumption as a result of whih the. burden which ordinarily lay on .the proseeut; on has been shifted to the defence. The manner in. which the.two new provisions have come into the. Act, the placement E of the two provisions, reference to: bo.oks. of "account and documents seized from any place in s. 228(1) which are words used in s.~2A(l), . and the fact that Parliament has prescribed a , special procedure of . authorisation by a magistrate and has. prescribed special credence to be given to these documents. s.eized _j:Jurlsuant fo the particular procedure prescribed, lead to the only concusion that the benefit of F s.:?2B of the Act is confined to books of account arid documents which have been ~-eized pursuan_t to _a Warraflt authorising a police officer not below the _rank of sub-inspector as. prescribed in s. J.:iA(l) of the . 'Act.

A special mode was prescribed requiring magisterial warrant, . authorisation of a police officer not below the rank of a sub-inspect01, the pliice .to be searched wasdequfred to. be spe_cified iti warrant G rllagistefial control ws pr

0 esCribed ov~! the investigation and whe~ these conditions were satisfied, the. special rule of exidence became applicable.

Admittedly there is no indication ins, 22B of the Act a~ to whether entries in the books of acceµnt and documents .seized without the aid H

. .

 A . ofs. 22A(l) would have the benefit of such presumption. But since a

pecial procedure has been indicated in s. 22A and s. 22B which fs with reference to s. 22A has provided the specialmodt of evidence, • we agree wi.th the view of the Full Bench. that in order to hav.e the benefit of s. 22B of the Act,.the prosec1ition must have carried on the search and seizure of the.books of account and documents i~ the B . manner prescribed under s. 22A(l) of the Act. Unle.ss the special

procedure has been followed', the special rule of evidence under s. 22B of the Act would not be attracted.

As we have held that it would lie open to the prosecution to carry o'n investigation of'offences under the normal provisions of the Code as also by invoking the special provisions ins. 22A of the Act, . two separate. positions would arise with reference to seized books of accotini and other documents. Wheu s. 22A of the Act has been invoked the presumption under s. 22B of the Act would arise. When investigation has been carried under the Code without the aid of s.:22A of the Act, the presumption would not arise and the prosecu- . tion will have to prove the documents according to the ordinary rule' of evidence. It was canvassed before us that such an anomalous position could not have been intended by Parliament and it must have been the legislative intention to extend the benefit of s. 22B to books of account and documents seized by the prosecution with or without the aid of s. 22A of the Act.· We are not inclined to accept this submission for the rei'sons we have indicated and in. our 0pinion there is nothing anomalous because in one case. the normal rule of evidence woulci apply and in the other, where the special mode has been invoked, the pres.umptions would arise. Such a situation is not unk11own in law and we uphold the view oHhe Fuli Bench.

At the hering some decisions of the d.ifferent High Courts were placed before us. A learned single Judge in the Bullion & . kriculiural Produce Exchange Private Limited v. 'Phe Forward Markets Commission, Bomba]' & Ors;, '1 l took the view that search conducted without the requisite warrant from a magistrate was ab initio void.'

'I~ view of the conclusions we have reached, this decision is certainly bad and canriot be accepted as laying down good law .. In State. of

U.P. & .A.nr. v. Chambers of Commerce (Regd.). Chandausi, District Moradabad. & 01's., <zl a Division Bench had taken the view that under s. 5(:2) of the Code offences under the Act could still .be investigated

H (I) A.I.R. 1968 Born. 338.

(2) 1970 All. L, J. 182.

• 1

1 r .

. ,;;'

• •

MAHARASHTRA v. JAY ANTI. LAL (RangdnathMisra, J.) . 437

and s."165 of the. Code was not inconsistent with but supplemental A . to s, 22A of the Act. So far as this decision goes .there is nothing ii1cori.sistent with what we have said. A single Judge of the Bombay High C9uri iri M.R. Pillai v: M/s. Moti/a/ Vr{Jbhukandas & Ors.;<1> took .the view thats. 22A of the Act did not debar the police from exercising the pow.ers under s, 165 of the . Code. This is in accord

with the conclusion reached by us.

' . B

The appeal is dismissed and the decision of the Full Bench is affirmed. . ·

S. R .

A.ppea/ dismissed.

(I) AIR 1970 Bom. 24.

STATE OF MAHARASHTRA

IA YANTl LAL AND OTHERS

MURTAZA FAZAL ALI

RANGANATH MISRA JJ.

Section 22A

section 228

section 22A

Forward Contracts (Regulation) Act

Section 165

Section 22B(1)

s. 22B(l)

s. 22B

s. 22B

s. 2

s. 22A

1).P. Rana

M.N. Shroff

N.M. Ghatate

V.D. Deslipande

sections 20 and 2L

section 5(2)

sections 22A

s. 22B

s. 22B

ss. 2

s. 22B

s. 22A

section 98

section 21

Section 22A(I)

Section 228(1)

s. 22A(I)

s. 228(1)

Parliament

s. 22A

s. 22B

s. 22A

s. 22B

s. 22A(l)

s. 22B

s. 22A

s. 22B

s. 22B

s. 22A

s. 5(:2)

RangdnathMisra


A . 438

,. .. '

LT. coL. s. J; CHAUDHARY

STATE (DELHI ADMINISTRATION)

January 17, 1984

[9 CmNNAPPA REDDY, E.S. VENKATARAMIA.H AND R. B. MISRA, Jlj , l

Criminal Procedure-Trial by.sessions coutt to poceedfron1 di:ly to dliy. Triill- when coulcf be adjotrned. · . . "' ..

ractie-Duty oi Advocate.

The petitioner sought modification of the Court's order that the tri3.l -should proCeed from daY to day on the ground .that his advoCates werenof prepared to

appar in the. case fr6m -day to day as the trial Was likely to be. prolonged.

D. .--D.ismissing the. ptition,

HELD : It will b~ in .. the l.Oterest of both the prosecution and the defence . th.at the trial proceeds fro1n day-_tO-day.

Before commencing a trial, a Sessions Jud&e rn.ust satisfy him5~1f that all nxessary evidence iS available: If it is not, l1e . .may _postp::>ne the case, but only _on the stron'g:esi Possible grourid and for e shortest

p_ossible period. Once thi: tfial commences;· .he should, except for a very .piessing E , reason which make:~ an adjoUrnment inevitable, .Pfoceed de die_ in .diem un.til the '7-- trial is concluded: [439 CDJ ·

. It _is th~ duty Of every advocaie who _acccPts. the brief in a criminal case to --'- • ·· attend. the tria! from day-to-day.. -Having accePted the briet he will be committing -7 ....

~ beachof his prfessional duty, if he.so fails to attend. r439 B-F']

F . CRIMil'i~L APPELLATE JuR1SmcrmN : Criminal Misc. Petition No.· 284

of 1984 in Sp, cia:l Leave Petn. (Cr!.) No: 3000 of 1983.

 . K. L. Sharma, K. K. Mohan and Mrs.' Geetaiali Mohari for the Petitioner,·

G K.G. Bhagat, Additiooal Solicitor General, R.D. Agarwaz and . R.N. Poddar for the Respondent.

• The Order of the Court_ was delivered by :

H CiUNNAPPA REODY, 1.

By an order dated December l!, 1983, this.court while dismissing a petition fo~ speCial leave to appeal filed:

; .

.. ·,.A

. ( ...... \

s. J. CHAUtn~AR)' v. STATE (Chinnappa Reddy, J.) 439 ..

against.an order of the Del.hi High Cout refusing to grant bail to the

p;, titioner until after examination of Rani Chaudhaj as a witness, gwe a direction that on the commencement of the ttial, it should pro'if'ed from <:lay-to-day. Alleging t)lat his two Advocates are not prepared .to appoar in the case from day-to-day as the trio! is Hkelv to be prolonged. tho petitit'~1er has. fikd the present application for

modification•or the earlier 6rder of this cout t by the deletion of• the 'direction tint. the trial should proceed from day-to-da:y. .

• • • ...

We think'it is an entirely.wh0leso111e practice for the trial to go on :from day-io-dav .. It is .most expedient that the tr; al before the court of a Session shoukl proceed. and be dealt. with continuosly from its incepcion to its finish: Not only ,;111 it rcsuJi.in expedition, it will also result in the elimination of.mailOeuvre. and mischief, It will be in the interest of both the pros, ecution an.d the defence that

~ • the trial proceeds from dav-to-dav.

It' is necessary to realise that Sessions cases must not. bo tried. pi

0ecemeul. Before commendng a trial, a Sessions Judge. must satisfy himself that all necessary evidence. is available. u it is noi, he.maypostpone the case, but only on the strongest possible ground and for the shortest possibl!' perfod. Once the trial commences, lle should, except. fof a verv press'lng reason "'hich makes an adjourrAllent hievitable, proceed de die in diem .. until the trial .is concluded, . . . . . . . . .

. ·.

- . We are µable to.appreciate the difficulty said to be experienced

E -. ·. "r by the 'petitioner.· It is stated that his Advocate is finding it difficult . _to attend the court from day-to-day: It is the duty of every Advccate, who accepts the brief in a criminal case to a.ttend the trial frcmday-tcday.

We cannot over-stress the duty of ihe Advocate to attend to

-~ the trial froth day-to.-day. Having accepted the brief, he will be

 F committing a breach of his profossional duty; if.he so fails to attend . . The Criminal Miscellaneous Petition is, therefore, dismissed. . •

H.S.K.

Petition dismissec(. ' G '

LT. coL. s. J; CHAUDHARY

STATE (DELHI ADMINISTRATION

9 CmNNAPPA REDDY

R. B. MISRA

K. L. Sharma

K. K. Mohan

Geetaiali Mohari

G K.G. Bhagat

R.D. Agarwaz

R.N. Poddar

H CiUNNAPPA REODY

Chinnappa Reddy

Rani Chaudhaj

H.S.K.


• B

I D

; . • • 440

H. ANRAJ AND OTHERS ETC.

V.· • STATE OF .. MAHAR'-sHTRA

•• January 23, 1984

[Q. CmN~A~PA REDDY •. E. S. VENKATAAA~IAH AND R. B. M1sRA, JJ] l

Constitution ?f India 1950

Articles. 73 alld 298-GOvern'!lent of State-Whether could organise. lotteries-.

Whether competent to. ban sale of ti'ck"ets of lotteries conducted by other Sta'te Govern ments. ·

Entry 40 List I VIII Sc/1edule, Emry 34 List II VIII Schedule & Articles 246(1) . • 't' and (3). ·

State LegiSlatµre-whether co1npeten.t 10 enact a law touching lotteries organised by the Govenunent of India or a State'Government. .•.

Lotteries Sale of_tickets of lotteries c_onducte; J _by oiler State Governments-State

Go1 1rn1nent---· Whether competent to iJaJt .wiJhin in _own State. ·

By a press release, the Government of Maharashtra declared that the sale of lottery tickets of Stales other than the State of Maharashtra was .unlawful an(l w"arped the public .that no lottery ticket o~ other States should be sold within the

State. ·

•The petitioner.s who were agents for the Sale of tickets for lotteries coll ducted .by various:State Governments other.thait the State'of Maharashtra contended in their writ-petitions, that the aforesaid ban that was soµght to be irriposed had no lega:l authority. Under the Constitlltion lotteries organiSed by the GoVernment of India or. the Government of a State was a subject which was within the exclusive legisiative comPeience of Paliaent and that it was not open ·.to the Governnient of any State pu_rporting to A.Ct in exercise of its executive power to in1pose such a . ban .. On behalf of the Sti.te aovernment-respondent it was•Contended . .that the_

Union Government's execut_ive power wa's co-extensive with the power to make laws, that the President in exercise Or his" power Under Article 258(1) ha_d ehtr-Usted to the State Government the executive power of the UniOn through a Presidential.

Order dated April 2, 1969 in respect of lotteries run by the State, and therefore it was competent for the St; i.te Gc;:>vernment to imp.ose. the ban.

Allowi;1g th~ writ Petitions. ..

HELD : 1. The Government of M.aharashtra cannot purport to ban the

H. ANRAJ v. MAHARASHTRA ..

.. 441 t# sale of lottC:ry tickets of other State by ,; irtue oJ the entrustment of power under Article 258(1) of the Constitution. [447 DJ

i. Entry 40 of Lfst I of the VIIIth SChcdule to the Constitution is. "Lotteries organised by the Governn1ent of India or the Government of a State". Entry 34 of List II of VIiS Schedule is, "Betting and ga:inbling".

Sinc.e the subject 'Lotteries organised by the Governni.ent of India or the Govcrnnient 'of a State' }J.as been taken out from-the legislatiV_e field comprised by the exprcssi&n "Betting and gamb 1illg" and .reserved t6 be dealt with by Parliament, wifhin its exclusive legislative competence it must follow, in vie\\' of Articld'-246(1) and (3) that no legislature of a State, can n1ake a law touching i9ttcries organisid by the Government of Tndia .Or the Government of a State. [444 P-El

-.......

3. Articl, e 73 extends the executi"ve power of the UniOn to the matters with ( respect to which Parliament has po:wer to make. Ja:ws.

Buhe executiv~ p~\\'er ' .of the UQidn, I;>y the very opening words of Art. 73 is "subject to the proV:isions of .the Constitution". It thefefore follows that the .executive power of the Unjon with rCspect to 'lotteries organised by the GOvernment of a .State has necessarily to be exercised subject .to -the provisions of the Constitution, .including Art. 298, which expressly extends the execi.itive power of the State to the.carrying on of any trade -If or business subject Only to legislation Qy Parliament if the trade or "business is not one with respect to which the state Legislatur"en1ay make laws. [4470-H; 440A-B

Reading and c; on'sidering Articles 73 and 298 together, it is clear that the executive power of a State iii the n1atter of carr)ring on any trade on business. with respect tb_ which i.he State legislature may noi make la~NS is subject to lcgislatiop by Parlian1ef!.t but is not subject tb the executive power of the Union. The Goyernmnt of a State is qot required to obtain the Permission of the Union Government in order to organise its lotteries; in the absen~.of Parliaffientary legislatjon. Even assuming that such pe, nnission is .necessary, a condition inlposed by such permission that lottery tickets of one State may not be sold in another State cii:nnot'be enforced

~Y the other State. The other State J:tas no power to make any Jaws in regard to lotteries organised by the first State .. lts.ex.ecutive power, by virtue of Article 298, extends to logtteries oranised. b~· itsel_f but no.t to lotteries organiSed by the othe'r State. [448C-Ej .

5. If.a State acts in breach of the condition in1posed by the President while en"trusting power under Article 258 it i, s op.en to the President to revoke the.· per~ . mission o.r to tke such further or other aCtio"n.as may be consitutionally permissible but it cannot possibly enable the Government of the other State to do anything

bot it except to con1plain perhaPs to the Union Government. [448 E-F] .

In the instant case the source of power fo"r the ban is claimed to be the entrust~ mei1t of poWer by the President under Act 258(1). through. the Pridential Order nated April z', 1969. But the terms of the entrus1ment do not justify the claim The entrustffient of power is Only 'ill respect of lottrics organise'd by th<:i~ Govern-· nient' .. The l.xpression 'that Government' in.the conrext of the entrustment of power to the Governinent of Mahara$htra can , only _ffiean the- Oovernment of Maharashtra and no other. [447 B.-C]

• G

L.B. Paradise Lottery Centre v. State, ATR 1975 AP 50 Shri T11drci11ada11 Cha1"iln

 H La/"Thacker v. Staie of Gujarat, S.C.A. 1309/70 approved: ,

 Kamal Agency v. State, AIR 1971 Bonibay 332 and H.G. Jain v. State af Ta1ni'ln"du, ArR 1973 Madras 402; ovcr; ruled.

ORIGINAL JuRISDICTION : Writ Petition. Nos. 9333 or 2J36 of 1983:

. (Under Arti~Ie 32 of the Constitution of India). , .. . . . .

AdvOates for the rctitione.s ; '.

L.M. Sin.hvi, A .. M. Singh vi, Vimal Dave,. and Krishan Kumar.: A

" T.S. Krishnamurth)• Iyer, Naresh Kumar Sl1arma and Vineet Kumar.· ...,-y "' . . . . '.

Dr. Y.S. Chitale,. (Not present) Mrs: Sadhano Ramhandran and Raju Ramchandran and.Ha1jinder Singh (Not present) ·•

Advocates for .the Responents :

A.V. Rangamand Mrs. Sm la Chandt~ for the State of Tamilnadu. . .

_ N.H. Gurusahani, A.shwani Kumar, N. N. Keshwani and M. N.

Shroff a1id A..S. Namhiar Not Present.

The Judgment of the Court was delivered by

. CHJNNAPPA REDDY, J.

The seve.ral petitioners in these writ petitions are agents for the sale of tickets. for the lotteries conducted by n1e Governments of various States other than Maharashtra. They question the ba11 sought to be imposed by the Government.of Maha~ rashtra on the sale within the State of Maharashtra of ticket~ of lotteries conduc.ted by the Government o(otherStates. They, generally, seek a writ in the . nature of it Mandamus directing'.the State or Maharashtra.to forbear from interferring with the sale or distribution of lottery tickts inrespect of the lotteries organise'd by the Governments bf States. other than Maharashtra.

There is no express notification or order of the Government of Maharashtra imposing a ban on the sale of lottery tickets of o.ther .States in .the State of Maharashira. The ban is sought to be spelt 'out from a Press relcase of the Director of Publicity, Sachivalaya, Bombay dated Septeniber 24, 1969 and a •communication dated August 24, 19ill addressed by the. Government of Maharashtra,.

.. . . >

.. > - / ( ' ' -

H. ANRAJ 'v. MAHARASHTRA (Chinndppa f!rddy'. J.). 443

Finance Department, to some of the petitioners individually. The .Press release is as follows :

SALE OF LOTTERY TICKETS

OF OTHER STATES UNLAWFUL

Warning to' Pul:ilic . ..

On September 16, the Minister for Finance in a Press conference, followed by q''press note, made it dear to agets who arc selling lOJJery tickels that the sale pf lottery tickets of other States in this State is .unlawful. The Government

. of India, in giving permission for conducting State lotteries C had made a condition: that the lottery tickets should not be sold in another_ State, without the express consent of that State, No such permission has been given in Maharashtra · for the sale of outside State. !ottecy tickets. Despite the . warning given .by the Minister, nnautl!orised sales of lottery tickets of outside States continues, and the Government D is therefore .taking steps to stop these obviously unlawful practices by seizing all stocks of tickets of other. States' lotteries. T.he public are warned ihat no tickets other that the Maharashtra State Lottery tickets can' be sold within : the Maharashtra State".

The communications addressed to the petitioners are m the following terms :

Sir,

I am directed io refer to your letter No. DA/PL/81/6~, dated.22.6.1981 on the above mentioned subject and to 'state that there is ban on the sale of other State Lottery tickets in State of Maharashtra. It is, therefore, regretted that your request to permit you to sell your Slate Lottery tickets in this State cannot be. accepted. .

• Yours .faithfully, .

Sd/- State. Lottery Officer, Finance Department.

 The basic subrnissfon on behalf of the petitioners is that there.

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• 444

A is no legal 'authority for the imposition of the ban. It is argued that under the Constitution, .'Lotteri.es organised by the. Government of India or the Government of a State' is a subject which is within the exclusive legislative competence ofParliament and that it is not 0pen to the Government of any State purporting to act in exercise of its executive power to impose such a ban as that sought to be imposed by the Government of Maharashtra. On the other hand, it is sought to beargued on behalf of.the Govern1ftent of Maharasht.ra 'that the Union Government's executive power is co-extensive with the power of

Parliament to make laws, that the President in exercise of his power _1 under Art. 258(i) has entrusted to the Government of Maharashtra . the executive power of the Union in respect of lotteries run by the -\ State and therefore,: it was competent for the Government of Maha rashtra to impose the ban.

Entry 40 of List I of the V!Ith Schedule to the Constitution is "Lotteries .organised by the Go.v.ernment of India or tk Government of a State". Enirv 34 of List II of Vllth Schedule is, "Betting and gambling". There is no dispute before us that the expressin "Betting and gambling" includes and has alwys been understood to have included the conduct of lotteries. Quite obviously, the subject 'Lotteries organised by the Governmerrt of India or the Governmen.t of a State' has been taken outfrom the legislative field comprised by the expression "Betting and gambling" and is reserved to be dealt E with by Parliament. Siilce tii.e subject 'Lotteries organised by the Government of India or the Governmnt of a State' has been made a subject within the .exch!sive legislative competence of Parliament, it must follow, in view of Aci. 246(1) arid (3), that no legislature of~ j State can make a law wuching lotteries organised by the Government of lnd'a or the Government of a State. This. much is be; ond controversy and the Maharashtra legislature has acknowledged the position, as indeed it must, in Sec. 32 of the Bombay Lotteries (Control and Tax) and Prize Competitions (Tax) Act,· 1958. It is an .ct to control and tax lotteries and to tax prize competitions in the State of Maharashtra. Section 32(b) expressly provides that nothing in the Act shall apply to "a lottery organised_ by the Central Government or a State G; overnment". This, as we said, is but' a recognition of the. prevailing situation i!nder the Constitution. The Constitutional postion cannot be. alterd by an ct of the State legislature.

It appears that the Government of Maharashtra and various . 0ther State Governments requested the :Union Government to • authorise them to conduct lotteries for the purpose of 'finding funds

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Ii. ANRAJ v. MAHARASHTRA (Chinnajlpa Reddy, J.) 445.

for J'inancing their development plants'. Such authorisation was, of course, strictly, not necessary in the absence of a law made by Parliament pursuant to Entry 40 of List I ofthe VIIth Schedule to the Constitution ... Article 298 of the Constitution extends the executive power of the Union and ach State to the carrying .on of any trade or business and to the acquisition, holding and disposal.of property . and the making of contracts for any purpose; with the stipulation that if the trade, business or purpose is not one with respect to which Parliament may make laws, the said executive power of Parliament shall be subject in each State to legislaticJn by .the State and if the trade, business or purpose is not one with respect to which the State legislature may make laws, the said executive power of the State shall be subject te. Jegislation by Parliament. Thus, while the Government of a State is free. to earry on any trade or bsiness in respect of which it may not have. the power to make laws the power to carry on such trade or business shall be subjectto legislation by Parliament. Therefore, the Government of a State has the rig ht to conduct lotteries subject to legislation by Parliament. Since there is at present no legislation by Parliament on the subject of lotteries organised by the Government of India or the Government of a St; i.te, the Government of every State has the unrestrictect' right to organise lotteries of. its own.

We will consider the effect of the impact of Art. 73, Art. 258(1) and . Entry 40 of List I read with Art. 246 on this right a little later. • • • To continue the expose of facts, in response to the request <if . the several State Governments, the Minisiry of Home Affairs, Government of India, addressed a communication dated July 1, 1968 to the Chief Secretaries to the Government of all States. It was stated in the letter that though the Central Government was opposed to the idea of lotteries being cond1Jcted by Governments, they had decided . to authorise the State Governments to conduct lotteries in view of the representations of some of the State. Governments that it w<; mld help theni 'to mobilise savings and to find funds. for financing their development plans'. However, it was added : - . "At the same time, it is also felt that suitable steps should be taken to safeguard the interests of s11ch State Governments, who, as a matter of policy, do not desire to start State Lotieries or permit sale of tickets of lotteries organised in other States, within their jurisdiction. In order to avoid objections frbm .such States, it has been decided that the . Central Government's permission for conducting State Lotteries is available on the condition that tickeis to such a iottery will

A not be sold in another State without the express consent of the State Government concerned. I am. to add that in order to achieve this object an amendment of Section 294-A. tPC is being undertaken to make sitle of tickets, .without . ~·.

the consent. of the State Government concerned, .a penal . offence" ..

.We may mention )1ere lhat the proposal to :imend Section 294-A IPc to achieve the object. of preventing the sale of lottery tickets of . on~ State being old in States which are opposed to the conduct of lotteries .as a matter of policy has rema'ined a static proposal and no" 1_ uch amendment ha.s so far been attempted to be made. . •

'The communication dated July' l', 1968 from. the Government '..·~ of India was followed by Presidential Order under Art. 258(1) of the Constitution. .The' Presidential Order relating to the State of Maha-, rashtra w; th which we are concerned, is as follows :-'

No. 29/29/63-P.IV . Governmeii.t of India . Ministry of Home Affairs New Delhi, the 2nd Aptil, 1969.

ORDER

 Wheas the Government of Maharashtra propose to organise a State lottery;

' And whereas the Central Government has no .objection to it ; ·

. Now, therefore, the President is pleas.ed to permit the.

Government of Maharashtra to conduct a State . lottery, subject to the .condition. that the ti.ckets of the lottery shall not be sold in another State without the permissiOn. of the Government of-that State. ·

The President is further pleased to entrust to. the . Government of Maharashtra under clause(!) of Article 258 of \he Constitution the .executi:ve power of the Union in : respect of lotteries. organised by that Government. .

. .

. , Sd/-

(D.D. JOSHI) Deputy Secretary to the Government of India.

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H. ANRAJ v. MAf!ARASHTRA (Chinnappa Reddy, !.). 447

It was after this entrustmeni of executive power of the Union A to the Government of Maharashtra 'i)l respect oflotteries organised by that Government' .that the Government of Maharashtra proceeded to. issue the Press release and thereafter the individual communications, earlier referred. to, making it known that the sie of lottery tickets .of other States was banned in the State of Maharashtra.

The source of powerfor the ban is claimed to be the entrustmenf of power by the President under Art. 258(1) of the Constitution. But . the terms of the entnistment.do not justify the claim; 'The entrust-· . men.t of power, as is seen, is only 'iii respect of lotteries organised by that Goveru.ment'. The expression 'thatGorermrient' in the context

of the entrustment of power to the Government of Maharashtra . C cajl only mean the Government of Maharashtra and no other. Nor can it ever be that such executive power as the Union Government may possess -in respect of the trading,. bu.siness or, for tha.t matter, .. any other activity of the Government of one State may be entrusted to the Government' of another State. That would be destructive of the very scheme and structme of our Cnstitution. The Govern- D ment of Maharashtra cannot therefore purport to ban the sale. of lottery tickets of other States by virtue of the entruslinent of power . under Article 258(1) of the Constitution. ·

It is. then said that the permission granted to each State to conduct its lotteries is expressly subject to the condition that the tickets of the

 E lottery shall not be sold in another State without 'the permission of the Government of .that State. We have already pointed out that 'Ai:ticle 298 of the Constitution extends the executiv.e power of every,. ·

State to the carrying on of any trade or business even if such trade or business is one with respect of which Parliament alone has. the exclusive power to make laws, "Subject to the tipulation. that such F . executive "power of the State shall be subject to Pariiamentary legisla- ·

tion. It is true that in view of Entry 40 of List r of the VIIth Schedule to the Constitution Parliament has exclusive power to make laws .with• respect to "Lotteries organised by the Government of India or the · Government of a State", that Article '73 of the Constitution extends the eltecullve power of of the union .to .the matter~ with respect to G which Parliament bas power to make laws and, therefore, the executive power of the Union must extends to the subject "Lotteries organised by the Government of India of the Government of a Slate". But tlie executive power of the unioii, b; the very opening wbrds of Article 73, is "subject to the provisions of this Constitution". It follci)VS that the executive power of the UniQn with respect to lotteries

A organised by the Govrnment of a State has necessarily to be exercised

.. '

subject to the provisions of the Constitution, including Article 298, which expressly extends the executive power of the State to the carro/ing on 'of any trade or business subject only to legislation by Parliament if the trade or business is not one with

respect to which. the . State legislature may. make laws.

It is to B.. be .noted. that Article 298 does not open with the words 'subject to the. provisions of Che Constitution', .as does Article 7,3.

Reading and considering .Articles 73 an1 298 togetiier, .as thev should indeed be read and considered, it is clear that the executive power .of a' State in the matter of carrying on any trade or bus.iness with respect to which the State legislature may not make laws iS subject to legishtion by Parliament but is not subject to the executive' power of the union. That is why we mentioned earlier that tl:)e. Government. of a .State is not . required .to obtain the permission of the Union Government in order to orgai1is; its lotteries, in the absence of Parliamentary legislation.· Even assuming that such permission is necessary, D we dci not see how a condition imposed by such. permission tht lottery . tickets of oe State may not be sold in another State m•Y be enforced . by the other State. The other State has no power to make law~. in . . regard to the lotteries .by the first State. Its executive power, by virtue of Article 298,. extends io lotteries organised by itself but not .to lotteries.organised by the other State. If a State acts in breach of E.

Arthet_co 1 ndition imposed.by the President while e.ntrustthing po"'.er_underr ·.

Jc e 258, it is open to the President to revoke e perm1sswn o. to take such further or other action as may be constitutionally per-

• missible but it cannot possibly enable the Government of the other.

State. to do a thing about it except to complain, perhaps, t~ the Umon Government. The Government of India is quite obvwusly ahve to the position that there is no way of enforcing the.stipulation that lottery tickets of one Stateshall not be sold in another except by . . Parliament mahing a law in that behalf.· The awareness is reveal;:d

by the last sentence in the letter dated July 1, 1968 which says,

"I am to add that in order to achieve this object an amendment of 'Section 294-A IPC is being undertaken to make sale of tickets, without .the consent of the State

. ed • penal offence" ..

Government concern ' .

. the light of dav. . ent is vet to see 7.'he rfrf'lnno;:; if :imenc\m ..

found favour with the appears to have • A submission which '

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H .. ANRAJ v. MAHARASHTRA (Chinnappa,_ Reddy, J.) 449

High Court of Bombay in Kamal Agency v. State"> and the High_ A Court of Madras in H.G. Jain v. State of Tamil Nadu( 2> was that in Entry 40 of List I and the respective loca.l Acts, a lotter1 organised by a State must be colistrued to refer to a lottery Jawfully organised by a State and that if a lottery is not lawfully organised by a State it would not fall within Entry 40 of List I but. would fall under the head 'gambling' under Entry 34 of List II and the State -legislature would then be empowered to legislate in respect of the same. Where the State Legislature could thus legislate, it was said, th' State Gover.nment cou'd take execuUve action in . respect of lotteries organised

bf another State if they were unlawfl11. The Gujarat and Andhra .

Pradesh High Col'rts have dissented fwm this view.

Jn Special .

Civil Application No. 1309 of 1970 Bhagwat;;. C.J. presiding over a Didsi0n Bench of the Gujarat High Court. and in L.B. Paradise Lottery Centn v. State(3> cine of us sitting singly in the Andhia Pradesh High Court have explained !hit there is no justification for first reading.

the word 'lawfully' into Entry 40 of :List I and the1i proceeding to interpret the expression !Lottery lawfully organised' as meaning a lottery rganised persuant to the entr.ustment of executive power of the Union under Article 258 of the Constitution. It was observed "legislative power cannot be fed into Entry 34, by feeding the word 'lawful' into Entry 40 oi List I and thus artifici11ly. restricting the scope of Entry 40':. It was pointed out that if the Go; ernment of a State otgenised a lottery without the entrustnient of executi\ie power . as contemplated b; ,(\rtide 2 58 o_r in disregard or defiance of any

condition that ma/ have been imposed while entrusting executive power under Arti& 258 it would IJever be a matter for the legislature of one State to take upon itseif the power to declre unlawful the lottery run by the Government o.f another State; anci even less so could the Government of a State declare unlawful a Jottecy run by the Government of another State and thereafter bari the sale of the tickets of the lotteries otganised by that State. In the .Madras case it was also obsered that the entrustmcnt order carried with it all powers which the State Government might take to realise the maximum collection.

We ca1111ot subscribe to this view .. That would really amount to the entrustment of vital legislatiye powers to the St.ate Government which would be conslitutionaH; impermissilile. We do.not think it necessary to refer in any further detail to the decisions . of the Gujarat, Andhra Pradesh, . Bombay and Madras decisions

(1) AIR 1971, 332.

(2) AIR 1973 Madras 402.

(3) AIR 1975 A . . P 50.

...

. .

A except to say that we generally agree with the reasoning in the Gujarat .

and Andhra Pradesh ded.sions and disagree with ihe reasoning in the . Bmbay .and. Madras decisions.· Jn the t:esJ.Ilt we allow the Write .

petitions and direct the :;>tate of Maharashtra , to forbear from giving .effect to the ban on the sa.Je or distribution of tickets of lotteries organised by other States. There is no order regarding to costs. ·

RV.K.· ·,

Appeal allowed:

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440

H. ANRAJ AND OTHERS ETC

Q. CmN~A~PA REDDY

Articles 246(1)

Government of Maharashtra

the State of Maharashtra

Article 258(1)

Government of M.aharashtra

The Government of M.aharashtra cannot purport to ban the

H. ANRAJ v. MAHARASHTRA ..

.. 441 tsale of lottC:ry tickets of other State by ,; irtue oJ the entrustment of power under Article 258(1) of the Constitution. [

Article 258(1)

Parliament

Government of Tndia

Articl

Art. 73

Art. 298

Articles 73 and 298

Article 298

Article 258

Wer by the President under Act

Constitution of India

L.M. Sin.hvi

M. Singh

Vimal Dave

Krishan Kumar

T.S. Krishnamurth)•

Naresh Kumar Sl1arma

Vineet Kumar

Y.S. Chitale

Sadhano Ramhandran

Raju Ramchandran

Ha1jinder Singh

A.V. Rangamand

Sm la Chandt~

N.H. Gurusahani

A.shwani Kumar

N. N. Keshwani

M. N.

Shroff

A..S. Namhiar

CHJNNAPPA REDDY

Maharashtra

H. ANRAJ

Government

. of India

Art. 258(i)

Government of Maha rashtra

Government of India

Government of lnd'a or

Maharashtra legislature

Sec. 32

Section 32(b)

Central Government

Government of Maharashtra

Article 298

Art. 73

Art. 258(1)

Art. 246

July 1, 1968

Section 294

Section 294

Art. 258(1)

Article 258

D.D. JOSHI

Art. 258(1)

Article 258(1)

Article 73

Article 298

Article 298

Article 7

Articles 73

Article 298

Section 294

IPC

Chinnappa,_ Reddy

High Court of Bombay

High_ A Court of Madras

Bhagwat

Article 258

.Madras

AIR 1975


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RAMENDRA .SINGH

STATE OF MADHYA P'lADESH AND OTHERS

January 23, !J84

[E. S. VENKATARAM!AH AND M. P. THAKKAll JJ.] . ,. . .

. .

Madhya Pradesh Ceiling on Agricultilral Holdings Act, j960 (.Act No~ 20 of

~ 1960); SeCtion 6 and read with SeCtionJ2(gg). c.ons_/rfl.lu!tiOn of:-Whether, in. vitw of ihe wordi,; g in section 6 (ii) viz "eaeh 1ne111ber of the/ptnily, including a n_1inor son would bcoine a holder entitled to a separate unit ofihe _ceiling area'', the. 11tintJr son will be.entitled to-clllifn a separate ceilifiC.are.a independently.

DismisS_ing the Special Leav~ Petition, -the Court,

HELD : Section .. 6(ii) of the M: P .. Ceiling on Agricultural Holdin:; s ACt, 1960 does not have any eff'eCt. on the _ceiling area to which a fainily as defined. in; Section 2{gg)· iS entitled under Section 7.

A m.inor.Son who is diemed tci -be entitled to an itea .of Joint Family liind proporiionate to his Share under. s. 6 (ii) ·

Ts not entitied to a .separate ceiling area independently. His share of tanct can -be clubbed with the land which can be _claimed by h_is father as his ceiling area. [45-2D; B]

Begulld Bapi i:-aju etc. e1c_"v. State of of A. P. (1983) 2 Scale l41 followed.

Sarjibai_& -Ors. V. State of M. P. ~Ors. (Misc. Ptitlon No. 811 of 197' of M. P .. High Court} appoved.. • . . • ·.

CIVIL APPHLLATB .JURISDICTION~ Appeal (Civil) No' 14604 of 1983 ..

Peiition for Special Leave to ...,

From the Judgment and 'Order dated the 2nd September. 1983 . of the Madhya Pradesh High Coi1rt (Indore Berich) .in Civil Miscellaneous Petition No. 193 of 197&.

G.L. Sanghi, S.K. Gambhir and A.shok Mahajan for the Petitioner .. . - . Ravbidrq )Jana and A.K: Sanghi for. t.he Respondent.

The Order of the Court was delivered by.

• VENkATARAMIAH, J.

The con.iention of the petitioner in the above case is that on a tttie construction .of.section -6 read with section 2(gg) ·:of. the 11adhya Prad.esh Ceiling on Agric\i!tural Ho!din2s Ad,

F ..

SUPREME COURT REPORTS

[1984] 2 S.C.R . •

1960 (Act No. 2o of 1960) (hereinafter referred to as 'the Act') each member of the family, including a minor son would become a holder entitled to a separate unit of the ceiling area. In other words, it is argued that a minor son who is deemed to be entitled to an area of joint family land proportionate to his share under sectfon 6(ii) of the .Act is entitled to claim a separate ceiling area independently. It is contended. that his share of land cannot be clubbed with the lan<l which can be claimed by his.father as his ceiling. area ..

We have heari:! Shri G.L. Sanghi, learned counsel for the petitioner. He .'has taken us through the relevant provisions of the Act viz. section 2 (gg), section 6 and section 7 of the Act. The High Couri has 10egat'ved the above .wntention of the petitioner relying upon its ear.lier decision in Sarjubai & Ors.· v. State ofMddhya Pradesl1. & .Ors.

(Misc. Petition No. Sil of 1979). We have gone through that decision.

On going through the said decision, we find that it is correctly decided.

We agree with the reasons given .in support of th~ said .decision. ft is in conformity with the view expressed by this Court in Begulla Bapi Raju etc. etc. v: State of Andhra Pradesh.">

Section 6(ii) of the Act does not have any effect on the ceiling area to which a family as defined in section 2(gg) is entitled under

section 7.

The petition is atcotdingly dismissed.

S; R.

Petition dismissed.

(I) ,[1983].2.SCALE141.

. ' .•

RAMENDRA .SINGH

STATE OF MADHYA P'lADESH AND OTHERS

section 6

Section 2

Section 7

s. 6

G.L. Sanghi

S.K. Gambhir

A.shok Mahajan

Ravbidrq )Jana

A.K: Sanghi

VENkATARAMIAH

section 2(gg)

G.L. Sanghi

section 2

section 6

section 7

Section 6(ii)

section 2(gg)

section 7