2 s.C.R.

SUPREME COURT REPORTS

SHIROMANJ GURDWARA PARBANDHAK

COMMITTEE v.

LT. SAR DAR RAGHBIR SINGH AND OTHERS

!VIVIAN BOSE, JAGANNADHADAS. VENKATRAMA

AYYAR AND SINHA JJ.j

Limitation-Sikh Gurudwaras Act, 1925 (Punjab Act VIII of 1925), s. 25-A--Committee constituted prior to the year 1930-Subsequent proceedings-High Couri's decision and notification under s. 17 of the Act-Suit for possession-Starting point for limitation- Ss. 85, 86, 88 of the Act, sc9pe of.

The plaintiff which is the Committee of Management for all Gurudwaras situated within the Municipal limits of Amritsar, except the Gurudwara Sri Akal Takht Sahib, was constituted prior to the year 1930 and by virtue of s. 85(2) of the Sikh Gurudwaras Act (Punjab Act VIII of 1925) became the Committee concerned with the suit Gurudwara. There were certain procee<iings under the Act in respect of the suit properties which were ultimately decided by the High Court on the 16th June 1936 and the decision was followed by a notification under s. 17 of the Act on the 3rd March 1937. As a result the plaintiff became entitled to get possession of the. saiJ properties by instituting a suit before a tribunal under s. 25-A of the Act within one year from the date_ of the decision or the date of the constitution of the Committee, whichever was later. The present suit was filed on the 25th February 1938 which was beyond one year of the decision and the question was whether the suit can be said to have been instituted within one year of the date of the constitution of the ComJllittee of the Gurudwara concerned, the contention being that the plaintiff must be deemed to have become the committe.: concerned with the suit Gurudwara only on the date of the notification thereof in 1937 under s. 17 of the Act by virtue of the provisions of ss. 86 and 88.

Held, that the date of the notification in 1937 under s. 17 cannot be deemed to be the date of the constitution of the Committe.: concerned for the purposes of s. 25-A and that the present suit is barred by limitation.

Section 86 does not apply to Gurudwaras within the Municipal limits of Amritsar specified in s. 85, in respect of which a Committee already exists and by virtue of sub-section (2) of s. 88 the date of the publication of the notification of the Committee which already has been in existence since 1930 will be the date of the constitution of the Committee within the meaning of s. 25-A.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11 of 1954.

Marc'lt 24 .

1955 Appeal from the judgment and Decree dated the Shiromani 20th day of June 1950 of the High Court of Judica-

P~:r:/,; J;:k ture for the State of Punjab at Simla in Regular First Committee Appeal No. 73 of 1941 arising out of the Decree dated

L.r. Sarda~ Raghbir the 19th _day of Decemb_er 19~0 of the Sikh Gurnd-

Sing/1 and others waras Tribunal, Lahore m Sutt No. 11 of 1938.

Gurharhan Singh and R. S.

N11/'/da. for the appellant.

Achhru Ram. (Nau11i1 Lal with him). for the respondents Nos. I and 2.

K. L. Mehta, for the respondents Nos. 3 to 5.

1955. March 24. The Judgment of the Court was delivered by

JAGANNADHADAS J.-This is an appeal on leave granted by the High Court of Punjab against its judgment affirming the decree of the Sikh Gurdwara Tribunal dated the 19th December, 1940, dismissing the plaintiff's suit. The plaintiff in the appeal is the Committee of Management of Sikh Gurdwaras within the Municipal limits of Amritsar (except the Gurdwara Sri Akal Takhat Sahib, Amritsar). The plaint was filed under section 25-A of the Sikh Gurdwaras Act, 1925, (Punjab Act VIII of 1925) (hereinafter referred to aS" the Act) for possession of certain properties situated in Amritsar. marked and bounded as specified in the plaint and purporting to have been declared as a Sikh Gurdwara by the Government of Punjab under section 17 of the Act by means of the notification No. 9-G dated the 3rd March, 1937. The case of the plaintiff-Committee is that thes.e properties were, and were determined to be, a Sikh Gurdwara. by name Gurdwara Bunga Sarkar. by the Sikh Gurdwara Tribunal by its decree dated the 4th November, 1935 and confirmed on appeal therefrom by the High Court of Judicature at Lahore, on the 16th June. 1936 and that accordingly the Committee was entitled to possession of the properties. The facts that have led up to the present appeal are as follow~: After the Act was passed and within one year of its commencement the then existing non-statutory Shiromani Gurdwarn Parbandhak Committee filed a list under section 1955 3 of th1,; Act claiming the suit properties and certain Shiroma11i other items attached thereto as belonging to the Gurp~, b, f;;'J/;,'.k dvvarn Harmandir Sahib. These properties comprised Committee two items called Bunga Sarkar and Bunga Mai .Ma_llan Lt. &rd"~· Raghbir and the shops appurtenant to each of them. Ob1ections Singh mid others were filed to this list by way of two applications r, g 1111~/,~; d~1 s1. under section 8 of the Act claiming these as private properties. One was hy Sardar Balwant Singh dated, the 8th March, I 928 and the other was by Sardar Raghhir Singh dated the 10th March, 1928. Sardar Raghbir Si;1gh claimed the whole of Bunga Sarkar and its appurtenant shops as well as 1I3rd of the Bunga Mai Malian and of the appurtenant shops.

Sardar Balwant Singh's claim was confined to l/3rd share; in Bunga Mai Malian anci in the appurtenant shops. The other l I 3rd share in Bunga Mai Mallan was apparently treated by these claimants as belonging to some other person who was not a party to these proceedings. These two applications were forwarded under section I 4 of the Act to the Gurdwara Tribunal for its decision. The parties to these proceedings entered into a compromise on tre 6th Febri1ary, 1930.

There were two compromises one relating to each of the applications. The net effect of the compromises w::is that some out of the items claimed were admitted to be the private property of the respective claimants and the rest as ivakf hungas for the Y atries to Sri Darbar Sahib, that the non-personal properties were to remain in the management of the claimants, their heirs and representatives as such wakf with certain stipulations as to how that management was to be carried on. The Tribunal disposed of the two applications before them in terms of these compromises. It may be mentioned that though the original list under section 3 of the Act was filed by the then non-statutory Shiromani Gurdwara Parbandhak Committee, the compromises were entered into by the Managing Committee of the Gurdwaras within the limits of the Municipal Committee, Amritsar, which presumably had already by then been formed under section 85 of the Act. Now, quite independently of these

10 8 SCI!ND/82

1955 proceedmgs before the Tribunal, and prior to the

Shiromo11i filing of the list under section 3 and of the objec- Gurdwara • d Porhandhak twns un er section 5 above referred to. there had Commi11ee been filed a petition under section 7 of the Act,

Lt .. sard;; Rag1tb;, sigrie~ by. 55 Sik)ls. claiming these very properties

Smf!h and others as bemg m themselves a Sikh Gurdwara bv name

.Tal!amzadhadar J. Bunga Sarkar !Maharaja Ranjit Singh Saheb) and enclosing a list of properties as belonging thereto under section 7(2) of the Act.

It does not appear that this petition was brought to the notie; e of the G, trdwara Tribunal when it passed the decree in terms of the compromise with reference to the objections under section 5 of the Act. The petition under section 7 was in the usual course followed by a notification issued by the Government on the 18th February. 1930, under section 7!3) of the Act. This resulted in (I) an objection under section 8 bv the Granthis ohject\ng that this was not a Sikh Gtirdwara. and (2) two other objections by Sardar Raghbir Singh and Sardar Balwant Singh, already previously above referred to, under section I 0 of the Act claiming the properties as their own and objecting to the claim made that thev were Sikh Gurdwaras. These ohj.; ctions were

filed on -the 5th April. 1930. It may he noticed that the notification under section 7(3) of the Act was within a few days after the compromise decrees in the proceedings under section 5 of the Act and it does not appear whether the compromises were brought to the notice of the Government or not. Thee objections under section 8 and JO (and presumably also the oetition under section 7) were forwarded to the Tribunal for its decision under secl inn 14 of the Act.

The petition under section 8 filed by the Granthis was contested by the Shiromani Gurdwara Parbandhak Committee !Statutorv) and after recording some evi- . . dence, the Tribuna 1 came to the conclusion that Bunga Sarkar was a Sikh Gurdwara and declared it as such on the 28th Aug1•st. 1935. On the objections under section I 0. notices were given to the Committee of Management as well as to the Shiromani Gurdwara Parbandhak Committee but they declined to become parties to it. The contest under section JO of the Act

was only as between the claimants and some of the .Ms Sikhs who filed the petition under section 7. At the Shiro1111111i hearing before the Tribunal both sides relied upon the P~~t,~}'/, t.; previous compromises in support of their respective Com111i11ee claims. The Tribunal . by its decision datd the th Lt. Sarda~ Rag/ibir November, 1935, decided that the properttes which Singh andlothers

had been declared as the properties of Sardar Raghbir Jagamiadhmlas J.

Singh and Sardar Balwant Singh respectively, should be declared to be their personal properties nd that the rest of the properties claimed to belong to Bunga Sarkar and Bunga Mai Malian should be declared to be Sikh Gurdwaras and as properties appurtenant thereto. It was also declared that these two Gurdwaras and the properties held to be appurtenant to them should vest in the management of Sardar Raghbir Singh and Sardar Balwant Singh by virtue of and as per terms of the compromises. As against these decrees two appeals were presented by the Sikh worshippers to the High Court and the only question that ultimately appears to have been raised was that the direction given by the Tribunal to the effect that the properties should remain in the management of the claimants, Sardar Raghhir Singh and Sardar Balwant Singh, was illegal. The High Court without giving any decision on the legal question s.o raised was of the opinion that it was no function of the Sikh Gurdwara Tribunal to pass an order on an application made unde1 section I 0 by the claimants that the claimants should manage the properties appurtenant to the Gurdwaras by virtue of the compromises. They thought that the question of right of management should be left open in these proceedings and that the directions in the decree of the Tribunal relating to the

m:rnagement should be deleted therefrom and that the rest of the decrees of the Sikh Gurdwara Tribunal is to stand. They expressed their conclusion ir the following terms:

"That portion of the decree of the Sikh Gurdwaras Trihunal which has declared the respondcnts's ri12ht

to manage the Gurdwaras and the properties aooe11<if'ci thereto shall form no part of the Jcree granted hv the Tribunal; the .rest of the decree of the Sikh Gur-

1955 dwaras Tribunal stands, that is to_ say, the properties Siiirouu1ui which have been declared to be. the personal proper- Gurdwwa ties of Sardar Raghbir Singh and Sardar Balwant Parba11dhok

committee Singh shall remain their properties and the properties

Lt. surd,~: Raglibir ".".hich have been declare_d to be appendd to the two

Siag/1 "'"' 01hm l1urdwaras shall remam the properties of the two

Gurdwaras".

Jaga1111adhadas J.

The High Court also added that, though the proceedings .mentioned the existence of two Gurdwaras by name Bunga Sarkar and Bunga Mai Mallan, the real position seemed to be that there was only one Gurdwara,. viz. Bunga Sarkar, and that Bunga Mai Mallan had no separate existence as a Gurdwara but was a well.-known part of Bunga Sarkar. This decision of the High Court was on the 16th June, 1936. This was followed by notification No. 9-G dated the 3rd March,

1937. under section 17 of the Act which is the foundation of the present suit.

On these facts a number of contentions were raised by hoth sides before the High Court as well as before us. The Judgment of the High Court as well as the arguments before us have covered a wide range. On the merits, the case for the plaintiff is quite simple.

The plaintiff says that whatever may .be the position with reference to the earlier compromises" arrived at between the parties in the proceedings under section 5 of the Act, the later proceedings with reference to those very properties under section 10 of the Act resulted in the judgment of the High Court dated the

llith June 1936. which is conclusive and binding. By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of section 25-A of the Act. On the side of the defendants various objections have been raised which may be summarised as follows: ( l) The proceedin!!S under section 10" did not result in any specific declaration in favour of the Committee that the properties in dispute in the present suit constituted a Sikh Gurdw::ira or belong to a Sikh Gurdwara. No such declaration can he 'gathered from the decision of the Tribu!l'\l dated the 4th November. 1935. or from that of

the High Court on appeal dated the 16th June, 1936. 1955

(2) The Tribunal had no jurisdiction in disposing of s11iruma11i Gurdwara an application under section I 0 of the Act, to give a Parbaud!rak positive declaration that the property in question is co111111ittee a Sikh Gurdwara. Its only function was to decide Lt. sarJd: Raghb whether or not the properties claimed were the pri- Singh 1111'!_ others vate properties of the claimants.

Hence even if the Jaga111wdiradas J decision of the Tribunal and of the High Court can be treated as a decision declaring the properties as a Sikh Gurdwara that is not valid and the notification issued thereupon is void. (3) Any such decision would be contrary to section 37 of the Act and also ctrntrary to the princir!es of res judicata and would be. therefore, a nullity on that ground. (4) The conduct of the Gurdwara Parbandhak Committee and the concerned Committee of Management, in entering into the conipromises in the proceedings under section 5 of the Act without disclosing the ptndency of the petition filed by the 55 Sikhs under sei:; tion 7 of the Act, followed up by their declining to be

made parties in the section 10 proceedings and in virtually promoting the contest of the proceedings under sections 8 and 10, was fraudulent. They are accordingly estopped from r.elying on the decree obtained under section 10 proceedings and basing their right to relief thereon. {5) The suit under section 25-A lies only where the decision on an objection under section 10(1) is reached after the notification that the Gurdwara is a Sikh Gurdwara is published since the section refers to a decision in favour of a

"Notified Sikh Gurdwara" implying the pre-existence of such notification. (6) The suit under section 25-A was barred by limitation. (7) The whole appeal abated in the High Court inasmuch as one of the respondents Sardar Balwant Singh died during the pendency of the appeal. His legal representatives were not brought on record in time and the Jjig:h Court declined to excuse the delay and to set aside the abatement, as a resu It of which the entire appeal abated, the claim against both the respondents being joint and not being maintainahle against one only in the absence of

1"55 the other. In addition to these contentions which Shiromani have been put forward before us and strenuously

P~;'[, i,~J{%k argued by both sides, the. High Court also based its committee decision on the view that section 7 of the Act ass\1mes

Lr. Sardo"; Raghbir he existence of '.l Gurdwra and that a. noification Singh and others issued under section 7(3) without there bemg m fact a

Ja; amiadlwdas J Gurdwara in existence would be ultra vires. In the

 present case, in view of the prior proceedings under section 5 and the compromises following the1 eupon, the non-existence of the Gurdwara as claimed in the petition under section 7(1) must be t:iken to have been made out and therefore the notification and all the proceedings following thereupon are illegal and ultra vires.

Though we have heard elaborate arguments fro.m b0th sides on these various contentions, it appeared to ns ultimately that the plea of limitation is decisive

againt the appellants and that it is unnecessary to expres.< any opinion on any of the other contentions raised. The question of limitation arises with reference to the terms of section 25-A which is as follows:

"25-A. (I) When it has been decided under the provisions of this Act that a right, title or interest in immovable property belongs to a Notified Sikh Gurdwara, or any person, the Committee of the Gurdwara concerned or the person in whose favour a declaration has been made may, within a period of one year from the date of the decision or the date of the constitution of the Committee, whichever is later, institute a suit before a tribunal claiming to be awarded possessidn of the right, title or interest in the immovable property in question as against the parties to the previous petition, and the tripunal shall if satisfied -that the claim relates to the right, title or interest in tlie immovable property which has been held to belong to the Gurdwara, or to the person in whose favour the declaration has been made. pass a decree for possession accordingly.

(2) Notwithstanding anything contained in any Act to the contrary, the court-fee payable on the plaint in such suit shall be five rupees".

This section provides. for the filing of the suit, the 1955 period of one year from the date of the decision or Sltiromani the date of the constitution of the committee whichp~:;~;;;:k ever is later. Now the date of the decision in this Committee case must be taken to be the date when the High Court Lr. sardd: Rag!thir on appal disposed of the proceedings imder section Singh and others 10, i.e., the 16th June, 1936. The present suit has Jagannadhadas J. been filed on -the 25th February, 1938, i.e., clearly beyond one year of the decision. The question for consideration, therefore, is whether the suit can be said to have been within one year from the date of the constitution of the Committee of the Gurdwara concer'ned. Now, one has to turn to sections 85, 86 and 88 of the Act to appreciate which is the Committee concerned with this Gurdwara and what the c.late of its constitution is. Section 85 is as follows On so far as it is relevant):

"Subject to the provisions _of -section 88, there shall be one committee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated Within the municipal hn1111dorie.1 of <A mrirsar other than the Sri AkRI Takht Sahib".

Section 86 is as follows (in so fay as it is relevant):

"For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act".

Section 88 is as follows (in so far as it is re.levant):

"<l l The committees described in sections 85 and 86 shall be constituted as soon as may be after the c0nstitution of the Board. provided that no committee

shall be constituted for any gurdwara under -t-he provisions of this Act unless and until it has been declared to he a Sikh Gurdwara under th~ provisions of this Act.

(2) When all the members of any committee described in section 85 have been elected or co-opted. as the case may be, according to the provisions of that section. the Provincial Government shall notify the fact that the committee has been duly constituted,

S//fr<J111a11i Gurdwara Parbandhak

and the date of the pubfkatio11 of the notificat1011 shalt be deemed to be the date of the constitution of the committee".

Con11nittcc N · d. . . v. • ow. 1t 1s not 1sputed that the present plaintiff LI. Sardar Raghhirwhich i' the Committee of Management for all the

S111gh and others G j . d . . . . . . __ n.m waras situate within the Mu111cmal limits of Jagmmadhada., J. Amritsar, except the Gurdwara Sri Akai Takht Sahib was constituted prior to the year 1930 and was in fact functioning at the date of the compromises in the section 5 proceedings dated the 6th February, 1930. ft is also not disputed that bv virtue of section 85(2), this committee also became the Committee concerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar.

But it is contended for the appellants that this Committee becomes concerned with the suit Gurdwara only from the date when the notification under section 17 is issued, i.e .. from the 3rd March, 1937, and that. therefore, the plaintiff had one year from that elate for the filing of the suit and that in the situation, section 25-A in providing the alternative period of limitation as being "one year from the date of the constitution of the committee". must be construed reasonablv as being one year from the elate of the notificatiOn in such a case and that for the purposes of this section, the pre-existing committee must be deemed to have been constituted for the suit Gurdwara only on the date of the notification.

In support of this contention it has been pointed out that the specific policy of the Act as discfosed in sections 86 and 88 is that no Committee is to be formed for a Gurdwara until after it has been "declared a Sikh Gurdwara under the provisions of the Act. It is accordingly urged that the phrase "constitution of the committee" in section 25-A should be construed so as to indioote a point of time not earlier than the notification of the concerned Gurdwara and that in the circumstances and in such cases the date of the notification of the Gurdwara mmt be the date of the comtitution of the concerned committee. It aopears to us, however, that this contention is untenable.

Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras

specified in section 85. Hence so far as our !)resent l955 purpose is concerned, the policy uQderlying section 86 Shiromani does not necessarily apply to the Gurdwaras within p~~~'; df:, k the Municipal limits of Amritsar for which a Committee C'ommittee already exists.

Moreover, sub-section (2) Lt. sdrda~ Raghbir of section 88 provides with reference to Committees Singh and others under section 85, that, as soon as all the members Jagam;-;; dhadtts 1. described therein have been elected or co-opted, the fact should be duly notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of the Committee. In the face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purposes of the Act and to imply an exception and an addendum to the specific deeming provision.

This would be legislating. We cannot, therefore, accept the contention of the appellant that the date of the notification under section 17 in the p1esent case should be deemed to be the date of the constitution of the Committee concerned for the purposes of section 25-A. It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under section 25-A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course.

That, at any rate, is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take

step~ to get the notification published earlier, but, it had three months thereafter to come forward with the present suit.

However this may be. we do not consider that there is any question of hardship,

11-R rt INDl82

1955 because obviously section 25-A is only lln enabling Shiromani section providing a cheap remedy by way of a suit

P~t:;:t:, ik before the Tribunal itself. We are clearly of the commime opinion that the present suit under section 25-A is

L S d v. R lb' barred by limitation and on this ground the appeal t. ar ar ag 1 1r f .. 1 Singh and othf'rS must a1 .

Jagannadlradas J.

March 24

The appeal is accordingly dismissed with costs.

Appeal dismissed.

THE ST A TE OF BJHAR v.

M. HOMJ AND ANOTHER

[VIVIAN BOSE, .TAGANNADHADAS and SINHA, .T.T.J

Surety bond-Stipulations of a penal nature-Whether should be construed strictly.

In a s11rety bond the sureties bound themselves for payment of Rs .. 50,000 "only in case Mr. Ali Khan fails . . . to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly". As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court, and eventually Ali Khan's appeal to the Privy Council was heard and dismissed by the Federal Court. Thereupon the Deputy Commissioner issued notice to the sureties to produce Aii Khan within three days.

Held, that the proceedings taken agaiqst the sureties \Vere entirely .misconceived as the penalty stipulated had not been incurred, in , iew of the terms of the bond set out above.

Provisions in a surety bond which are penal in nature mtist be very strictly construed and there is no room for the application of a legal fiction that the judgment of the Federal Court must be deemed to be the judgment or order contemplated by the parties to the surety bond.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 62 of 1953.

Appeal under. Article l 34(])(c) of the Constitution from the Judgement and Order dated the 27th March 1953 of the High Court of Judicature at Patna

in Criminal Revision No. 1290 of 1951 <•ri5ing out of

SHIROMANJ GURDWARA PARBANDHAK

COMMITTEE

LT. SAR DAR RAGHBIR SINGH AND OTHERS

VIVIAN BOSE

JAGANNADHADAS

SINHA JJ

Limitation-Sikh Gurudwaras Act, 1925

Punjab Act VIII of 1925

s. 25

s. 17

Ss. 85, 86, 88

s. 85(2)

Punjab Act VIII of 1925

16th June 1936

s. 17

3rd March 1937

s. 25

25th February 1938

s. 17

ss. 86 and 88

s. 17

s. 25

Section 86

Gurudwaras

Amritsar

s. 85

s. 88

s. 25

Gurharhan Singh

R. S.

Achhru Ram

K. L. Mehta

JAGANNADHADAS

High Court of Punjab

Akal Takhat Sahib

section 25

Sikh Gurdwaras Act, 1925

Punjab Act VIII of 1925

Government of Punjab

section 17

Sikh Gurdwara Tribunal

4th November, 1935

High Court of Judicature at Lahore

16th June.

section 1955

section 8

Sardar Balwant Singh

Sardar Raghhir Singh

10th March, 1928

Sardar Raghbir

Bunga Mai Mallan

Gurdwara Tribunal

6th Febri1ary, 1930

Darbar Sahib

section 3

Shiromani Gurdwara Parbandhak Committee

Municipal Committee, Amritsar

section 85

section 3

section 5

section 7

section 7(2)

section 5

section 7

18th February. 1930

section 7

section 8

Sardar Raghbir Singh

5th April. 1930

section 7(3)

section 5

section 8

section 7

section 8

Bunga Sarkar

28th Aug1•st. 1935

section 7

Singh

Sardar Balwant Singh

Bunga Mai Mallan

16th June, 1936

3rd March,

1937

section 17

section 5

section 10

3rd March, 1937

section 25

section 10

section 37

Gurdwara Parbandhak Committee

section 5

section 10

sections 8 and 10

section 10

section 25

section 10(1)

section 25

section 7

section 7(3)

section 5

section 7(1)

section 25

Jagannadhadas

25th February, 1938

sections 85, 86 and 88

Section 85

section 88

Baba Atal Sahib

AkRI Takht Sahib

Section 86

section 85

Section 88

sections 85 and 86

section 85

Sardar Raghhirwhich

Jagmmadhada

Akai Takht Sahib

section 5

6th February, 1930

section 85(2)

section 17

section 25

sections 86 and 88

section 25

Section 86

section 85

section 86

section 88

section 85

section 17

section 25

section 17

section 25

section 25

section 25

Jagannadlradas

.TAGANNADHADAS

Ali Khan

Singhbhum

Aii Khan

27th March 1953

High Court of Judicature at Patna


SUPREME COURT REPORTS [1955]

1955 because obviously section 25-A is only lln enabling Shiromani section providing a cheap remedy by way of a suit

P~t:;:t:, ik before the Tribunal itself. We are clearly of the commime opinion that the present suit under section 25-A is

L S d v. R lb' barred by limitation and on this ground the appeal t. ar ar ag 1 1r f .. 1 Singh and othf'rS must a1 .

Jagannadlradas J.

March 24

The appeal is accordingly dismissed with costs.

Appeal dismissed.

THE ST A TE OF BJHAR v.

M. HOMJ AND ANOTHER

[VIVIAN BOSE, .TAGANNADHADAS and SINHA, .T.T.J

Surety bond-Stipulations of a penal nature-Whether should be construed strictly.

In a s11rety bond the sureties bound themselves for payment of Rs .. 50,000 "only in case Mr. Ali Khan fails . . . to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly". As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court, and eventually Ali Khan's appeal to the Privy Council was heard and dismissed by the Federal Court. Thereupon the Deputy Commissioner issued notice to the sureties to produce Aii Khan within three days.

Held, that the proceedings taken agaiqst the sureties \Vere entirely .misconceived as the penalty stipulated had not been incurred, in , iew of the terms of the bond set out above.

Provisions in a surety bond which are penal in nature mtist be very strictly construed and there is no room for the application of a legal fiction that the judgment of the Federal Court must be deemed to be the judgment or order contemplated by the parties to the surety bond.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 62 of 1953.

Appeal under. Article l 34(])(c) of the Constitution from the Judgement and Order dated the 27th March 1953 of the High Court of Judicature at Patna

in Criminal Revision No. 1290 of 1951 <•ri5ing out of

2 S.C.R.

SUPREME COlJRT REPORTS 79

the Judgment and Order dated the 12th November

JY5S, 1951 of the Court of Sessions Judge, Singhbhum iriTJze State of Bi/tar Criminal Revision No. 16 of 1951.

M. 'f.iomi . A1ahabir Prasad, Advocate-General for the State of Bihar (Shyam Nandan Prasad and M. M. Sinha, with him), for the appellant.

S. N. Mukherji, for the respondent.

1955. March 24. The Judgment of the Court was delivered by

SINHA J.-In this appeal we did not think it necessary to hear the counsel for the respondents on the merits of the decision appealed from in the view we have taken, as will presently appear, of the terms of the surety bond which was being sought to be enforced against the sureties, the respondents in this Court. The surety bond in question was taken in circumstances which clearly appear from the following resolution of the Government of Bihar dated the J 7th October 1946:-

"Whereas one Maulavi A. Ali Khan, who was convicted under section 120-B read with section 420, Indian Penal Code by the First Special Tribunal, Calcutta and sentenced to four years' rigorous imprisonment and a fine of rupees o"ne lac which conviction and sentence have been subsequently upheid by the Patna High Court, has submitted to the Provincial Government a petition praying for suspension of his sentence in order to enable him to prefer an appeal al!ainst the said conviction and sentence to the Judicial Committee of the Privy Council.

And whereas the Provincial Government have granted the prayer of the petitioner subject to the conditions hereinafter specified which the petitioner has accepted:

Now, therefore. the Governor of Bihar herebv orders that the execution of the aforesaid sentence of Maulavi A. Ali Khan be suspended pending the hearin~ of the proposed appeal to the .Tndicial Committee of the Privy Council on his furnishing securitv worth Rs. 50,000 with two sureties of Rs. 25,000 each to the

and another

1955 satisfaction of either the Sub-Divisional Ofi1cer, The s1;;; e-;, f Bihurlamshedpur or the Deputy Commissioner of Singh- M. omi bhum and undertaking (l) to furnish proof by the 1st and a11ather December, 1946 of his having taken all necessary

Si1tha J. steps for the filing of the appeal and also (2) to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly. The petitioner, if in custody, may be released if he complies with the above conditions.

By order of the Governor of Bihar,

(Sd.) T.G.N. Ayyar, Secretary to Government".

In pursuance of that resolution the surety bond in question was taken from the respondents. The material portion of the bond (Ex. 2) is in these terms:

"We, S. T. Karim, son of Abdul Wahab, by caste Mohammedan, by occupation Contractor and Proprietor Jamshedpur and Star Talkies, Jamshedpur, residing at Sakchi, police station Sakchi in Town Jamshedpur, district Singhbhum, (2) Manik Homi, son of late Homi Engineer, by caste Parsee, by occupation zamindar of Mango, residing at Mango, police station Sakchi, district Sii; ighbhum,

Stand surety for the amount of Rs. 25,000 only each and bind ourselves to the Government of Bihar of which we bind ourselves, our heirs, executors and successors firmly for payment of Rs. 50,000 only in case Mr. Ali Khan fails to furnish proof by the lst December 1946 of his havii1g taken all necessary steps for the filing of the appeal and to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Comrr.ittee if by the said order or judgment the sentenc.e is upheld either partly or wholly".

It is dated the 19th October, 1946. As a result of the constitntional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court by virtue of the Abolition of the Privy Council Juris-

. '

diction Act (Constituent Assembly Act V of 1949) !!.5.5 which came into force on the 10th October, 1949. As The State of Bihar from that date ("the appointed day") all appeals M. Homi pending before the Judicial Committee of the Privy and another Council by virtue of section 6 stood transferred to the SinhaJ.

Federal Court. Ali Khan's appeal to the Privy Council thus got transferred to the Federal Court and in due course was heard by this Court. This Court dismissed the appeal in November 1950. In the meantime Ali Khan, the convicted person, who had gone to London to look after his appeal there, migrated to Pakistan and thus placed himself beyond the jurisdiction of the courts in India. In December 1950 the Deputy Commissioner of Singhbhum issued notice to the sureties, the respondents, to produce Ali Khan within three days. On their failure to do so, the Deputy Commissione!' called upon the sureties to show cause why their bond should not be forfeited. The sureties raised certain legal objections to the proceedings taken by the Deputy Commissioner. They contended that he had no jurisdiction to initiate the proceedings. The Deputy Commissioner postponed the decision of the preliminary objections and directed that all the. points in controversy shall be _heard and determined at the final hearing. Against that order the respondents moved the Sessions Judge of Singhbhum who by his orders dated the 12th November, 1951 overruled their objections and held that the Deputy Commissioner had jurisdiction to initiate the proceedings. It is not necessary to set out his reasons. The respondents moved the High Court in revision against the orders aforesaid of the Sessions Judge. A Division Bench of the High Court allowed the application holding that the Deputy Commissioner had no such jurisdiction as he purported to exercise in the matter of enforcing the terms of the surety bond against them.

Accordingly, the High Court quashed the proceedings before the Deputy Commissioner. Hence this appeal by the State of Bihar .

From the terms of the surety bond quoed above it would appear that the sureties bound themselves for

1955 payment of Rs. 50,000 "only in case Mr. Ali Khan

T!te State of Bi!tarfails ..................... to surrender to the Deputy Com-

M. 'iiomi missioner of Singhbhum within three days of the rea11d aii'ther ceipt of the notice of the order or judgment of the

SinhaJ.

Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly". In view of this clear provision in the bond the term~ of which being penal in nature must be very strictly construed, it cannot be said that the contingencies contemplated by the parties has occurred. There was no judgment or order of the Judicial Committee upholding either in part or in whole the sentence against Ali Khan. As the terms of the bond so construed cannot be said to have been fulfilled, the penalty stipulated has not been incurred. It must therefore be held that the proceedings taken against the respondent; were entirely misconceived. It was in these circumstances that we did not think it necessary to hear the appeal on its merits, that is to say, on the point of Jurisdiction on which the case had been de- Cided by the High Court.

It was contended by the Advocate-General of Bihar who appeared in support of the appeal that in the events which had happened there could be no judgment or order of the Judicial Committee and that therefore the judgment of this Court, which by virtue of the constiti.; tional changes had come by the jurisdiction vested in the Privy Council, should be deemed to be the udgment or order contemplated by the parties to the surety bond. In our opinion, there is no substance in this contention, firstly, because there is no term in the bond to the effect that the surety would be bound by any judgment or order given by such othercourt as may succeed to the jurisdiction then vested in the Judicial Committee of the Privy Council to. hear the appeal preferred by Ali Khan against his conviction by the courts 'in India; and secondly,

because there is no room, while construing the penal clause of a surety bond, for the application of a legal ficrion as suggested on behalf of the appellant. The Government through their legal advisers were 1ot

circumspect enough to insert any such alternative 195~ clause as would have given the judgment or order of Tlze Sta~;-;,! JJ.ihar this Court the same effect as is contemplated by the M v. . terms of the surety bond quoted above. 011J !,~~;:er

The appeal must therefore be dismissed in limine.

Appeal dismissed.

N. SATYANATHAN v.

K. SUBRAMANY AN AND OTHERS.

[VIVIAN BOSE, JAGANNADHADAS AND SINHA JJ.]

Representation of the People Act, 1951 (Act XLlll of 1951), s. 7( 4)-Appellant entered into agreel'T}ent. with Central Government for conveying postal articles and mail bags through Motor Vehicle Sel'vtce on certain remuneration-Appellant whether disqualified for election to the House of People under s. 7(d) of .the Act.

The question for determination in this appeal was whether the appellant was disqualified under s. 7(d) of the Representation of the People Act, 1951 for election to the House of the People.

The material portion of s. 7(d) of the Act reads as follows: "A person shall be disqualified for being chosen as and for being, a member of either House of Parliament .... (b) if, whether by himself or by any person or body of persons in trust for him or for his benefir or on his account, he has any share or interest in a contract for .... the performance of any service undertaken by the appropriate Government".

The appellant (a contractor) had entered into an agreement with the Central Government. The relevant portion of the said agreement was as follows: -

"The contractor has offered to contract with the Governor- General for the provision of a MoMr Vehicle Service for the transit conveyance of all postal articles and mail bags from December 15, 1949 to December 14, 1952 and the Governor-General has accepted the offer.

"The Government agrees to pay to the contractor Rs. 200 per month during the subsistence of the agreement 'as his remuneration for service to be rendered by him".

Held that on the face of it the agreement was between two competent parties with their free consent, and there was a lawful cash consideration for it. The Appellant entered into the agreement with his eyes open knowing full well his rights and liabilities under the same.

Si11/za J

March 29

section 25

section 25

M. HOMJ AND ANOTHER

VIVIAN BOSE

SINHA

Ali Khan

Singhbhum

Aii Khan

A1ahabir Prasad

the State of Bihar

Shyam Nandan Prasad

M. M. Sinha

S. N. Mukherji

Government of Bihar

Maulavi A. Ali Khan

section 120

section 420

Indian Penal Code

First Special Tribunal, Calcutta

Patna High Court

Bihar

T.G.N. Ayyar

S. T. Karim

Manik Homi

19th October, 1946

Constituent Assembly Act

10th October, 1949

State of Bihar

section 6

London

Pakistan

India

12th November, 1951

State of Bi!tarfails

SinhaJ.

VIVIAN BOSE

JAGANNADHADAS

Representation of the People Act, 1951

s. 7( 4)

Central Government

s. 7(d)

s. 7(d)

Representation of the People Act, 1951

s. 7(d)

December 15, 1949

December 14, 1952


2 S.C.R.

SUPREME COURT REPORTS 83

circumspect enough to insert any such alternative 195~ clause as would have given the judgment or order of Tlze Sta~;-;,! JJ.ihar this Court the same effect as is contemplated by the M v. . terms of the surety bond quoted above. 011J !,~~;:er

The appeal must therefore be dismissed in limine.

Appeal dismissed.

N. SATYANATHAN v.

K. SUBRAMANY AN AND OTHERS.

[VIVIAN BOSE, JAGANNADHADAS AND SINHA JJ.]

Representation of the People Act, 1951 (Act XLlll of 1951), s. 7( 4)-Appellant entered into agreel'T}ent. with Central Government for conveying postal articles and mail bags through Motor Vehicle Sel'vtce on certain remuneration-Appellant whether disqualified for election to the House of People under s. 7(d) of .the Act.

The question for determination in this appeal was whether the appellant was disqualified under s. 7(d) of the Representation of the People Act, 1951 for election to the House of the People.

The material portion of s. 7(d) of the Act reads as follows: "A person shall be disqualified for being chosen as and for being, a member of either House of Parliament .... (b) if, whether by himself or by any person or body of persons in trust for him or for his benefir or on his account, he has any share or interest in a contract for .... the performance of any service undertaken by the appropriate Government".

The appellant (a contractor) had entered into an agreement with the Central Government. The relevant portion of the said agreement was as follows: -

"The contractor has offered to contract with the Governor- General for the provision of a MoMr Vehicle Service for the transit conveyance of all postal articles and mail bags from December 15, 1949 to December 14, 1952 and the Governor-General has accepted the offer.

"The Government agrees to pay to the contractor Rs. 200 per month during the subsistence of the agreement 'as his remuneration for service to be rendered by him".

Held that on the face of it the agreement was between two competent parties with their free consent, and there was a lawful cash consideration for it. The Appellant entered into the agreement with his eyes open knowing full well his rights and liabilities under the same.

Si11/za J

March 29

The case was a staightforward illustration of the kind of contract contemplated by s. 7( d) of the Act. At all material times the }If. Satya11athan _ v. appellant had been directly concerned, for his own benefit, in the

/9jj

K. Subramanyan contract of carrying mail bags and postal arti.cles entered into by and others him with the Government in the Postal Department.

Section 7 of the Act is clearly intended to avoid a conflict between public duty and private interests.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 252 of 1954.

Appeal by Special Leave from the Judgment and Order dated the 22nd January 1953 of the Election Tribunal, Yellore in Election Petition No. 35 of 1952.

N. C. Chatterjee (A. N. Sinha and N. H. Hingorani, with him), for the appellant.

C. V. L. Narayan, for respondent No. I.

1955. March 29. The Judgment of the Court was delivered by

SINHA J.-The only question for determination in this appeal by special leave is whether the appellant is disqualified under section 7(d) of the Representation of the People Act, 1951 (hereinafter called the Act) for election to the House of the People, as held by the Election Tribunal, North Arcot, Vellore, by its orders dated the 20th January, 1953 in Election Petition No. 35 ol' 1952.

The facts of this case are not in dispute and lie vvithin a narrow compass. The appellant and respondents

I to 3 contested the last general elections from the Dharmapuri Parliamentary Constituency in the district of Salem in the State of Madras. Respondents 4 to 10 who were added subsequently by an order of the Tribunal were also candidates for election. Their nominations also had been held to be valid but thev ultimately withdrew their candidature before the polling took place. The appellant was in due course declared to have been elected to the House of the People Thereafter; on the 5th March, 1952 the I st respondent filed an election petition before the Election Commission contesting the appellant's election

on the ground that the appellant was disqualified ~:!. under section 7(d) of the Act as, from the date of his . N Satyanathan nomination and until the date of election and after, K. subr;-,,, anyQll the appellant had a contract with the Government of and others India in the Postal Department for the transport of Sinha 1. postal mail which was a service undertaken by the Government of India. At this stage it is necessary to state that it is admitted that the appellant is and

ha~ been the holder of a stage carriage service permit

(Ex. B-2) dated the 26th April 1949, issued by the Regional Tramport Authority, Salem, Madras. It was one of the cpnditions of the said permit that if called upon the appellant will enter into an agreement with the Government of India for the . transport of postal articles and mail bags. In pursuance of that obligation the appellant entered into . a registered agreement with the Government o( India on the 16th November 1949 (Ex. A-3) to be noticed in detail heremafter. After the appellant had filed his nomination

paper; the 1st respondent by his petition dated the 28th November 1951 raised the objection to the effect that his nomination should be rejected on the ground that he had entered into a contract with the Government of India for his own benefit for the transport of mail betwc;:en Salem and Yercaud. The Returning Officer for the Dharmapuri Parliamentary Constituency, Salem, by his orders (Ex. A-2) of the same date overruled the objection holding that the service rendered by the appellant of carrying mail is not under an agreement but on an imperative order of the Government under Rule 160-B of the Madras Motor Vehicles Rules. Apparently the registered agreement (Ex.

A-3) had not been placed before him.

To the election petition filed by the 1st respondent the appellant filed his written statement on the 28th May 1952 denying that he was disqualified for election as ~. member of Parliament by virtue of the provisions of section 7(d) of the Act. His contention was that "it is the exdusive privilege of the Government of India to convey all postal articles from one place to another and it is a normal function of the Government statutorily reserved to itself. There is no justifi-

12-8 SCI/ND/82

N. Satyanatha11

K. Suhramanyan

a11d others

Sinha J.

cation to regard the carrying of mails from one place to another as the performance of any service undertaken by the Government". It was further averred on behalf of the appellant that it was not justifiable to regard him as having any interest in a contract for the performance of any service undertaken by the appropriate Government within the mischief of section 7(d) of the Act; and that he had been only carrying out the obligations imposed upon him by Rule 160-B of the rules framed under the Motor Vehicles Act. It was also contended that under article 103 of the Constitution of India the question as to the disqualification Of a member has to be decided by the President whose decision shall be final.

On those pleadings the following issues were framed by the Election Tribunal:- !. Is the nomination of the 1st respt. invalid because of the prohibition contained in section 7(d) of the Representation of the People Act, 1951, or for any of the reasons set forth in paras. 9 to 11 of the petition?

2. Has this Tribunal no jurisdiction td decide the question as regards the disqualification of the returned candidate, because of article 103 of the Constitution of India? ·

Tt is not necessary to refer to the additional issue bearing on the question of limitation arising from an interlocutory application for impleading those candidate~ <respondents 4 to W) whose nomination had heen accepted but who had withdrawn from the contest. Both these issues were decided against the appellant. The Tribunal on a very elaborate discussion of the points raised before it. held that the postal service including the transport of mails is service undertaken by the Central Government within the meaning of section 7(d); that at tlie date of the nomination the appellant was a contractor under the Centr.al Government; that the agreement between the Government and the appellant involved mutual obligations which could rtot be referable to a bare statutory duty on the part of the appellant but that it was the result of mutual assent based upon a free

offer and acceptance; and that the agreement was supported by valid consideration. The Tribunal also held that article 103 of the Constitution was not a bar to its jurisdiction to decide the controversy.

Accordingly it allowed the election petition and held the appellant's election to be void in terms of section

100(1)(c) of the Act, with costs to the respondent.

Hence this appeal.

In this appeal the contentions raised before the Election Tribunal, except the objection to the Tribunal's jurisdiction in view of the provisions of article

103 of the Constitution, have been pressed before us by the learned. counsel for the appellant. It is manifest that the determination of this case must depend upon the true construction and legal effect of the agreement (Ex. A-3) admittedly entered into by the appellant with the Central Government. It is therefore necessary to set out in some detail the revelant clauses of the agreement.

The appellant (called the "contractor") is of the one part and the Governor-General of India of the other. The preamble says-

"Whereas the said contractor Sri. N. Sathianathan has offered to contract with Governor-General for the provision of a Motor Vehicle Service for the transit conveyance and delivery of all postal articles and mail bags as defined in the Indian Post Office Act, 1898, as amended from time to time, ...... from the 15th day of December 1949 to the 14th day of December 1952 and the Governor-General has accepted such offer upon the terms and conditions hereinafter appearing ...

Now this indenture witnesseth that the contractor in pursuance of the said agreement and in consideration of the premises and of the payments hereinafter agreed to be made to him ...

It is hereby mutually agreed and declared between and by the part.ies hereto as follows: -

l. Contract to carry: -The contractor shall during the continuance of this contract. that is to say, from the 15th day of December 1949 until the 14th day of December 1952 or until the said contract shall be determined by such notice as is hereinafter men-

N. Sa1ya11a1/11m

K. Subru11ia11ya11

and others

Sinha J.

JV. Satyanathan

K. Suhramanyan and others

Sinha J.

tioned or otherwise in (hereinafter referred to as the said contract period) duly and safely convey ......... by means of rpotor vehicles of good and reliable manufacture all postal articles and mail bags ....... ".

By clause 4 the contractor is permitted to carry passengers and their luggage by bus provided there is accommodation available .and provided that the mail service is not prejudiced in any way.

By clauses 5 and 6 the contractor is required to maintain in good order and repair a number pf motor buses and their spare parts at his own expense and to bear all municipal and other taxes payaqle in respect of the motor vehicles. Clause 7 contains the schedule of penalties in the event of non-completion of any journey or of delay in completion thereof in accordance with the time table, etc. By clause 8 the contractor is made absolutely liable and responsible for the due and safe custody and delivery in good order and condition of postal articles and mail bags.

By clause 10 nongazetted postal and telegraph officers travelling on duty on the route allotted to the appellant are declared to be entitled to travel free of all charges and such official passengers shall have precedence over ordinary passengers.

Clause 13 provides that the contract shall not be transferred by the contractor to any person or company without the previous consent in writing of the Director-General of Posts & Telegraphs.

By clause 15 the Government agrees to pay to the contractor Rs. 200 per month during the subsistence of the agreement "as his remuneration for service to be rendered by him hereunder". This monthly sum of Rs. 200 is liable to be increased or decreased proportionately to the increase or decrease in the mileage to be covered. Clause 18 is in these terms:-

"In t"1e event of the contractor failing to secure a renewal of the permit on the line this contract will automatically terminate on the date up to which the old permit shall be valid and in such case no compensation shall be payable to either party for such termination. This contract may be absolutely determined and put an end to by either of the contracting

parties giving four calendar months notice in writing to the other of his intention so to determine and put an end to the same".

Clause 21 contains the usual arbitration clause to the effect that all disputes and differences arising out of or in any wise touching or concerning the agreement shall be ref erred to the sole arbitration of the Director-General of Posts and Telegraphs or his nominee.

It is also provided that the award of the arbitrator shall be final and binding on the parties.

lt will be observed that the agreement set out above is a formally drawn up document which satisfies all the requirements of a contract. It is not the appellant's case that the contract has been vitiated by undue influence, fraud or such other cause. But it has been argued that it was a necessary sequel to the stage carriage permit granted by the Transport Authority undec the Motor Vehicles Act read along with the relevant rules. In this connection reference was made to rule 160-B of the Madras Motor Vehicles Rules which is as follows: -

"It shall be a condition of every stage carriage permit that the holder of the permit shall, if so required by the transport authority which granted the permit, carry mails at such rates and on such terms as the transport authority may fix after consultation with the holder of the permit and the postal authorities concerned".

The rule quoted above has apparently been made under the authority of section 48(d) of the Motor Vehicles Act. It is common ground that the agreement aforesaid between the appellant and the Cen tral Government is in pursuance of rule 160-B aforesaid; but it has been argued on behalf of the appellant that though the agreement aforesaid has the "semblance of a contract", it is lacking in the "essential ingredients of a free consensus of acceptance and offer".

This argument is based on the further contention that the appellant has been carrying mail on his buses in performance of a statutory .obligation which cannot come within the mischief of

.N. Satya11atlla11

K. Subra111a11ya11

and others

Sinha J.

JI/, Satya1tat/Ju11

K. Subra1na11ya11

and others

Sinha J.

section 7(d) of the Representation of the People Act,

1951. The material portion of the section is in these terms:-.

"A person shall be disqualified for being chosen as, and for being, a member Gf either House of Parliament ......

(b) if, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account, he has any share or interest in a contract for ............ the performance of any services undertaken by the appropriate Government". It has further been argued alternatively that if the agreement has the force of a contract, it is totally lacking in consideration because the monetary consideration provided for in the agreement is no more than the subsidy already fixed by the Regional Transport Officer by his orqers dated the 23rd July, 1949; that the agreement in question being with a third party, namely, the Governor-General, to render service which was already due to another party, namely, the Transport Authority for the same consideration can not amount to a valid contract supported by consideration; and finally, that the transport of mail is not a "service undertaken by the Central Government".

In our opinion, there is no substance in any one of these contentions. It is true that the appellant entered into the contract aforesaid with the Central Government for the transport of postal articles and mail bags on the 16th November, 1949. From before that date he had been carrying on the business of plying buses on the route allotted to him by the Regional Transport Authority.

But he entered into the contract with his eyes open and knowing full well his rights and liabilities under the same. No one is compelled to carry on the business of stage carriage service or for the matter of that, of transporting postal articles and mail bags. In terms of the permit, it is open to the Government to call upon a permit holder to undertake the additional burden of carrying postal articles and mail bags which carries with it the additional remuneration to be fixed by the Transport Authority after consultation with the postal authorites and the carrier.

It is not every stage carriage permit holder who is called upon to do so.

At the time the appellant entered into the contract with the Government in the postal department he may not have had any idea of standing for election to the House of the People when in future the general elections came to be held. If he wished to steer clear of the difficulty created by section 7 of the Act, he could have given due notice to Government under clause 18 of the contract referred to above. On the expiry of the term of the notice he would have been free to stand for election to a State or Central Legislature.

Section 7 of the Act is clearly intended to avoid a conflict between public duty and private interest.

The Tribunal discussed a number of authorities with reference to the English and the American Law of Contract for arriving at the conclusion that the agreement between the appellant and the Government of India in the Postal Department had all the ingredients of a valid contract.

The Tribunal need not have travelled so far afield, especially when the provisions of the Indian Contract Act which govern the case are sufficient to answer all the contentions raised on behalf of the appellant. On the face of the transaction the agreement was between two competent parties with their free consent. There was no question but that there was lawful consideration. The permit for the stage carriage had been granted by the authority under the Motor Vehicles Act; and the agreement for transport of postal articles and mail bags was between the Government of India in the Postal Department and the appellant for a cash consideration.

But it was argued that the agreement was in pursuance of a pre-existing obligation imposed by the rule aforesaid framed under the Motor Vehicles Act.

It is true that the permit does contain a condition that the pel"mit-holder may be called upon to undertake transport of mail bags and postal articles but that is only a notice to intending applicaots for a stage carriage permit that the grantee of such a permit may have to render that additional service for an additional remuneration if called upon to do so hy the

/955

. \ ·. Sa1.icnwt/1a11

K. Subramanran

and other.;.

Sinha J.

}/. Satyanathan v.

K. Sufwamanyan

and others

Sinha J.

authorities of the Postal Department. If any one was not prepared to undertake that additional responsibility, he was free not to make an a"pplication for such a permit; but that <loes not mean that the agreement actually entered into between the Postal Department and the permit holder is not an independent contract governed by its own special terms. As indicated above, clause 18 has reserved the right to either party to terminate the contract on giving four months' notice. The appellant must be presumed to have known that the agreement that he had entered into with the Postal Department will stand in the way of his running as a candidate for election to the Central or the State Legislature. There was nothing to prevent him from giving the necessary notice to the department and thus terminate his agreement so as to be free to stand as a candidate for elec1ion to the legislature. Section 7 of the Act is intended to ensure that there is no occasion for a conflict between public duty and private interests. The appellant had a clear and free choice before him. If he was anxious to serve the community as a member of the Central Legislature, he had to give up his private gains in the shape of the remuneration for carrying postal articles

and mail bags in his buses.

It may be that on his terminating the agreement with the postal department he would have to give up his stage carriage permit also but not necessarily so. lf on the same route a number of bus services are permitted to different parties, the Postal Department may choose any one of them to enter into the agreemnt for the carriage of mail bags and postal articles.

Bat even if there was only one service for the route in respect of which the appellant held the stage carriage permit, if he had to give up his permit, some other party would take his place for running the bus service and carrying the postal articles and mail bags.

It was further argued that the appellant had no hand in "the fixing of the remuneration to be paid by the Postal Department for carrying its mails, etc.

But it is clear, by a reference to the terms of the rule

quoted above, that the amount of the remuneration had to be fixed by the department after conultation with the carrier. It was always open to the latter to demur to the terms proposed by the department and if he found that the department was not prepared to accept his terms he was not bound to enter into the agreement. The fact that he had agreed to carry postal

articles and mail bags was possibly an additional qualification for him to ohtain a renewal of his permit and thus gave him sn advantage over his competitors.

Hence instead of being an additional burden or a handicap to him, it was an additional advantage to him in the matter of getting a renewal of his permit in preference to others.

The agreement was therefore based on mutual promises, by the appellant to carry the mail bags. etc .. and by the Postal Department to pay him suitable remuneration for the services thus rendered.

It was further contended on .behalf of the appellant that the Central Government could not be said to have 'undertaken' any 'service' within the meaning of section 7(d) of the Act when it made arrangements for the carriage of mail bags and postal articles through the appellant. It has not been and cannot be contended that the Government is bound in the discharge of its duties as a sovereign state to make provision for postal mail service. The provisions of the Indian Post Office Act, VI of 1898, are only enabling in the sense that they authorize the State agency to have the exclusive privilege of conveying letters, etc. for the convenience of the public and for the benefit of the Government, without making it obligatory upon it to provide every individual and every place with those facilities. It may be that those facilities are being extended from time to time and are being brought nearer to every home but that is only evidence of the fact that the State as a welfare state is anxious to provide for the conveniences of the public in the matter of communications and correspondence. That is to say, the Government in the Postal Department has only undertaken a service to be rendered to the community and that such

13-8 SCI/ND 182

19'5

N. 9'lt)'-*11

K. SllllramM)'1111

lllld otben

Slnflo J,

fl)~

N. Satyt.JM1ho11 v. f(. Subramanyan

and othtrs

Sinhs J.

March 25

a service is not an essential function of a sovereign

state. It cannot be rainsaid that the Government in the Postal Department is rendering a very useful service and that the appellant has by his contract with the Government undertaken to render that kind of service on a specified route. The present case is a straightforward illustration of the kind of contract contemplated by section 7(d) of the Act.

At all material times the appellant has been directly concerned, for his own benefit, in the contract of carrying mail bags and postal articles entered into by him with the Government in the Postal Department.

For the reasons aforesaid we have not the least hesitation in holding that the conclusions arrived at by the Tribunal are entirely correct.

The appeal is accordingly dismissed with costs.

A ppeaf dismiu('(f.

U..T.S. CHOPRA

STATE OF BOMBAY.

[S. R. OAS, BHAGWATI and IMAM JJ.]

Criminal Procedure Code, 1898 (Act V of 1898), s. 439(1)(2)!6) -Appellant convicted by Magistrate-His appeal to High Court dismissed summarily-After summary dismissal of that appeal Stat.J Government filed revision application to High Court for enhancernent of sentence-Notice issued to appellant to show cause against enhanrnment under s. 439(2)-Whether appellant entitled to show cause ai; ainst his conviction under s. 439!6) of Code of Criminal Procedure.

The appellant in this appeal was convicted by the Presidency Magistrate, Bombay, of an offence under s. 66(b) of the Bombay Prohibition Act (Act XXV of 1949) and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 250 or in defaulr to undergo rigorous imprisonment for one month. He preferred an appeal to the Hih Court at Bombay, which was summarily dismissed. After the dismissal of that appeal, the State of Bombay made a revision application to the High Court praying for enhancement of the sentence. Notice was issued to the appellant under s. 439(2) of the Code of Criminal Procedure to show cause against enhancement.

N. SATYANATHAN

K. SUBRAMANY AN AND OTHERS

VIVIAN BOSE

JAGANNADHADAS

SINHA JJ.

Representation of the People Act, 1951

s. 7( 4)

Central Government

s. 7(d)

s. 7(d)

Representation of the People Act, 1951

s. 7(d)

December 15, 1949

December 14, 1952

s. 7( d)

K. Subramanyan

Section 7

Election Tribunal, Yellore

N. C. Chatterjee

A. N. Sinha

N. H. Hingorani

C. V. L. Narayan

section 7(d)

Representation of the People Act, 1951

Election Tribunal, North Arcot, Vellore

Salem

Madras

5th March, 1952

section 7(d)

Government of and others India

Sinha

Government of India

26th April 1949

Regional Tramport Authority, Salem

Government o( India

16th November 1949

28th November 1951

Yercaud

28th May 1952

section 7(d)

N. Satyanatha11

K. Suhramanyan

Sinha

section 7(d)

Motor Vehicles Act

article 103

Constitution of India

Election Tribunal:-

section 7(d)

Representation of the People Act, 1951

article 103

Constitution of India

section 7(d)

article 103

section

100(1)(c)

article

103

India

N. Sathianathan

Indian Post Office Act, 1898

15th day of December 1949

14th day of December 1952

K. Subru11ia11ya11

Satyanathan

K. Suhramanyan

clause 4

Clause 7

clause 8

clause 10

Clause 13

clause 15

Clause 18

Clause 21

Motor Vehicles Act

section 48(d)

Motor Vehicles Act

Cen tral Government

.N. Satya11atlla11

K. Subra111a11ya11

K. Subra1na11ya11

section 7(d)

Representation of the People Act

23rd July, 1949

16th November, 1949

section 7

clause 18

Section 7

Indian Contract Act

Motor Vehicles Act

Motor Vehicles Act

K. Subramanran

clause 18

Section 7

section 7(d)

Indian Post Office Act

K. SllllramM)'1111

N. Satyt

Sinhs

section 7(d)

U..T.S. CHOPRA

STATE OF BOMBAY

S. R. OAS

BHAGWATI

IMAM

Criminal Procedure Code, 1898

s. 439(1)(2)

s. 439(2)

s. 439

Code of Criminal Procedure

Presidency Magistrate, Bombay

s. 66(b)

Hih Court at Bombay

State of Bombay

s. 439(2)

Code of Criminal Procedure