I959

Sardar Sarup Singh

State of Punjab

S. J(. Das j.

April I.

516 SUP HEME COUB, T REPORTS [1959] Supp.

contention that non-Sikhs can in any way influence the Board. We do not agree that Sikh Sarpanches and N aya Pradhans are in the service of Government or that their inclusion as members of the electorate violates the right of the Sikhs under Art. 26 (b) of the Constitution.

It may not be quite irrelevant to point out here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty .five elected Sikhs from the Pepsu area will be a minority as against 132 elected members and twenty-five co-opted members of the Board.

For the reasons given above, we hold that the petitioners have failed to make out a case of violation of their fundamental right. Accordingly, the petition fails and is dismissed with costs.

Petition dismissed.

OM Pl~ABHA JAIN v.

GIAN CHAND & ANOTHER

(JAFER IMAM, A. K. SARKAR and K. SuBBA RAO, JJ.)

Election Dispute-Deposit for security for costs-Dismissal of Election Petition for non-compliance with rules therefor-Appeal- Maintainability-" Trial·. meaning of-Recitals in deposit receipt -"On whose behalf", meaning of-Representation of the People Act, r95r (5r of r9sr), ss. 90(3), 98, 99, rr6-A, rr7.

Section II7 of the Representation of the People Act, r95r, provided: "The petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him ...... in favour of the Secretary to the Election Commission as security for the costs of the petition."

The respondent, who filed an election petition challenging the validity of the appellant's election, deposited the amount as required under s. II7 of the Act.

In the deposit receipt, the \.VOrds "Secretary to the Election Commission " were put in as against the name of the person on whose behalf money was paid.

The appellant contended that the receipt in this form showed that the money had been paid by the respondent acting for the

Secretary to the Election Commission and not by him in favour of the latter, and that as the receipt was, therefore, not in terms of s. rr7, the election petition should be dismissed. The Tribunal accepted the appellant's contentions and dismissed the election petition under the provisions of s. 90(3) of the Act.

Held, that the words "on whose behalf" in the deposit receipt, in the context, must mean "in whose favour" and that the receipt was in full compliance with s. n7 of the Act.

Held, further, that the order passed by the Tribunal under the powers contained in s. 90(3) of the Act dismissing the election petition is an order under s. 98 and is appealable under s. n6A.

The word "trial" in s. 98 of the Act mearts the entire proceeding before the Tribunal from the reference to it by the Election Commission to the conclusion.

Harihar Singh v. Singh Ganga Prasad, A.I1R. 1958 Pat. 287, disapproved.

Harish Chandra Bajpai v. Triloki Singh, .[1957] S.C.R. 370, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 85 of 1959.

Appeal by special leave from the judgment and order dated August 12, 1958, of the Pnjab High Court in First Appeal Order No. 183 of 1957, arising out of the judgment and order dated November 8, 1957, of Shri Harbaksh Singh, Member, Election Tribunal, Karnal, in Election Petition No. 249 of 1957.

Purshottam Tricumdas, J. B. Dadachanji, S. N.

Andley and P. L. Vohra, for the appellant.

Ganpat Raf,, for respondent No. 1.

Naunit Lal, for respondent No. 2. 1959.

April 1.

The Judgment of the Court was delivered by

SARKAR, J.-In the 1957 General Elections the appellant was declared elected to the Punjab Legislative Assembly. The respondent, Gian Chand, filed an election petition for a declaration that the appellant's election was void.

The other respondent in this appeal, presumably another unsuccessful candidate at the election, had been made a party to the petition but he never appeared at any stage. For brevity we will refer to the respondent Gian Chand, as the respondent.. ·

I959

Om Prabha ] ain

Gian Chand

Sarkar ].

19;9 The Election Tribunal before whom the petition

Om Prabha Jain came _up for trial framed a number of issues and recordv. ed evidence. When the case was ready for argument, Gia" Chand the appellant made an application to the Tribunal for an order dismissing the petition under s. 90(3) of the Sa.kar J.

Representation of the People Act, 1951, which is later set out, on the ground that s. 117 of that Act had not been complied with. Section 117 requires that every election petition shall be accompanied by a Government Treasury receipt showing that a deposit of Rs. 1,000 had been made by the petitioner in favour of the Secretary to the Election Commission as security for the costs of the petition. The appellant's contention was that the receipt enclosed with the petition was not, for reasons which will be mentioned later, in terms ofthe section. The respondent objected to the application being entertained because of the delay in filing it and also on the ground that it could not be decided without taking evidence. The Tribunal overruled the respondent's objections am! held on a scrutiny of the receipt alone that it was not in terms of s. 117, and thereupon dismissed the election petition under the powers conferred by s. 90 (3) without deciding the other issues framed.

The respondent went up in appeal to the High Court of Punjab. It was there contended on behalf of the appellant that no appeal lay from an order dismissing an election petition for the reasons mentioned ins. 90 (3) and that the order of the Tribunal was in any event right. The High Court held that an appeal lay to it and that the order dismissing the petition was wrong because the terms of s. 117 had been complied with. The present appeal is against this order of the High Court.

Tbe first point that arises is whether an appeal Jay to the High Court. The Act provides by s. 116A that an appeal shall lie from every order made by an Election Tribunal under s. 98 or s. 99 to the High Court of the State in which the Tribunal is situated. The appellant's contention is that the order of the Tribunal dismissing the petition had not been made under either of these sections. lt is quite clear that the

Tribunal's order had not been made under s. 99.

The point that arises is whether the order had been made under s. 98. If it had not been made under s. 98, an appeal would clearly not lie.

The appellant contends that it was not so made but had been made under s. 90 (3).

These two sections are set out below : "Section 98.-Decision of the Tribunal.-At the conclusion of the trial of an election petition the Tribunal shall make an order- ( a) dismissing the election petition ; or

(b) declaring the election of all or any of the returned candidates to be void ; or

(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected;".

"Section 90.-Procedure before the Tribunal.-

(3) The Tribunal shall dismiss an election petition which does not comply with the provisions of section 81, section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85." Section 85 provides :-

"Section 85.-If the prov1s10ns of section 81 or section 82 or section 117 have not been complied with, the Election Commission shall dismiss the petition."

It is first contended on behalf of the appellant that the provisions of s. 85 and s. 90 (3) are substantially the same and the fact that no appeal has been provided against the order made by the Election Commission under s. 85 should be taken as indicating that no appeal lay against an order under s. 90 (3).

We are unable to agree with this view. It seems to us that whether a; n appeal lies against an order of the Tribunal has to be decided by reference to s. 116A and not by reference to the fact that a similar order by the Election Commission has not been made appealable.

It is next said that an order under s. 98 is by the terms of the section, an order made at the conclusion of the trial of an election petition while an order dismissing a petition for any of the reasons mentioned in

I959

Om Prabha Jain v.

Gian Chand

Sarkar].

Om Prabha Jain v.

Gian Chand

Sarkar j.

520 SUPREME COURT REl'OR'.l.'S [1959] Supp.

s. 90 (3) is an order made prior to the commencement of such trial or at least prior to its conclusion. It is said that the word "trial" in s. 98 means that stage of the trial where evidence is tendered and arguments are addressed. Therefore, it is contended, an order dismissing a petition under the powers contained in s. 90(3) is not an order under s. 98 and it is. consequently not appealable.

vVe see no justification for this view. An order made under the powers contained in s. 90(3) brings to an end the proceedings arising out of a petition; after it is made, nothing more remains for the Election Tribunal to try or do in respect of that petition. Therefore, it would appear that it is made at the conclusion of the proceedings before the Tribunal. It follows that such an order is made at the conclusion of the trial by the Tribunal for, as will be presently seen, the sole duty of the Tribunal is to try the petition; the proceeding before it is the trial before it. For the same reason it would be impossible to say that the order was made before the commencement of the trial of the r1etition by the Tribunal. That would be entirely against the whole scheme of the Act which we now proceed to consider.

Chapter III of Part VI is headed "Trial of Election Petitions". It consists of ss. 86 to 107 and covers the entire ground from the moment an election petition comes to an Election Tribunal till the final order of the Tribunal terminating the proceeding arising out of the petition before it.

The first section, s. 86, provides that if the Election Commission does not think fit to dismiss under s. 85 the petition which has to be filed with it in the first instance, it shall refer the petition "for trial" to an Election Tribunal constituted by it for the purpose. Therefore it would seem that the sole duty of an Election Tribunal is to try an election petition referred to it. It is an ad hoc body created under s. 86 for this purpose only.

When it passes an order which closes the proceedings before it arising out of an election petition, it must be deemed to have tried the petition and passed the order at the conclusion of such trial. It would no less be so when it

decides a matter before it and thereby brings the proceedings to a close on one of the several issues raised and does not decide the other issues. In such a case it has made the order after trial of that issue for clearly it cannot make an order on any issue without trying it. It has therefore made the order at the conclusion of the trial held by it.

And for this purpose, it makes no difference that the issue tried is of the nature usually called as preliminary issue or that the Tribunal does or does not consider it necessary to try the remaining issues.

The same conclusion also follows from the other provisions of the said Chapter III of the Act, some of which are hereinafter mentioned. Section 86(4) gives the Election Commission the power to fill a vacancy occurring in the office of a member of an Election Tribunal and upon the vacancy being so filled up " the trial " of the petition shall be continued by the Tribunal as if the. person appointed in the vacancy had been on the Tribunal from the beginning. Since it is conceivable that a vacancy may occur in the office of a member of a Tribunal long before the final hearing, that is to say the taking of the evidence and the commencement of the arguments, this section by providing that upon the vacancy being filled "the trial" of the petition ., hall be continued must _be taken as contemplating the proceeding prior to the final hearing also as trial. Under s. 88 an Election Tribunal may in its discretion sit "for any part of the trial " at any place in the State in which the election had taken place. Here again the entire proceeding before the Tribunal from the reference to it by the Election Commission till the conclusion is being considered as the trial. Again under s. 89 the Election Commission may at any stage withdraw a petition pending before a Tribunal and transfer it "for trial to another Tribunal" and "that Tribunal shall proceed with the trial from the stage at which it was withdrawn" from the first Tribunal. So here too the entire proceeding from the first reference to an Election Tribunal is being spoken of as the trial. Hence the contention of the

I959

Om Prabha Jain v.

Gian Chand

Sarkar .f.

'959 ·]earned counsel for the appellant that the trial men- - _ tioned in s. 98 is the stage in the proceedings in which Om Prabha Jain evidence is taken and arguments are heard, is unv.

Gian Chand founded. That word in the other sections in this part of the Act clearly means the entire proceeding before Sarkar J. a Tribunal from the reference to it by the Election Commission to the conclusion. We find no reason to give it a restricted meaning in s, 98.

Again, suppose in a case no evidence was 'necessary but the petition was dismissed after hearing arguments only. That would clearly be an order under s. 98. It would have been passed at the conclusion of the trial.

How is that case different from one in which on arguments having been heard, the petition is dismissed under the powers contained in s. 90(3) ? Obviously here also the order was made at the conclusion of the trial. An order passed by the Tribunal under the powers contained in s. 90(3) bringing the proceeding to a close is, therefore, in our view an order made under s. 98.

The learned counsel for the appellant referred us to Harish Chandra Bajpai v. Triloki Singh(') in support of his contention that the order of the Tribunal with which we are concerned in this case was not made at the conclusion of the" trial. We are unable to find anything in that case to help hiJn.

There this Court was dealing with s. 90(2) of the Act in which the word 'trial ' occurred. This Court observed that the word 'trial ' standing b:y itself may be susceptible of two meanings, that is, as referring to the final hearing of the petition consisting of examfoation of witnesses, filing documents and addressing arguments, and also as referring to the entire proceedings before the Tribunal from the time that the petition is transferred to it under s. 86 of the Act until the pronouncement of the award. It held that the word 'trial' in the section meant the entire proceeding before the Tribunal. This case therefore does not show that the word 'trial' in s. 98 meant only the final hearing. On the contrary it shows that in s. 90(2) which is one of the sections in the Chapter of the Act with which we are concerned,

(1) [1957) S.C.R. 370, •

the word 'trial' has been understood by this Court as r959 referring to the entire proceeding. That, as we have - said earlier, is really a good reason for thinking that Om Prabha Jain in s. 98 the word 'trial ' has the same wider meaning Gian vChand and not the narrow meaning of which, the word standing by itself may be capable.

Sarkar J.

It also seems to us that s. 90(3) which purports to deal with the " procedure before the Tribunal " only states the power of the Tribunal and s. 98 provides for the orders to be made by it in exercise of that power.

This view receives support from ss. 103, 106 ands. 107 of the Act.

Under s. 103, the Tribunal after it has made an order under s. 98 has to send a copy of it to the Election Commission and the records of the case to the District Judge of the place where it had, been sitting. Under s. 106, after receipt of the order of the Tribunal the Election Commission shall forward copies of the order to the appropriate authority and to the Speaker or Chairman of the House the election to which was being questioned by the petition. Section 107 provides that every order made under s. 98 or s. 99 shall take effect as soon as it is pronounced by the Tribunal. Now if the contention of the appellant is right and an order dismissing a petition under the powers contained under s. 90(3) of the Act is not an order under s. 98, such an order need not be sent either to the Election Commission or to the Speaker or the Chairman of the House concerned, neither would there be any provision in the Act stating when the order is to have effect, nor again any provision enabling the Election Tribunal, which isan ad hoc body, to dispose of the records of the case before it. There is no reason why the Act should provide that a dismissal of an election petition on the merits as it has been called, shall be dealt with by the Act in one way while a dis- missal on a preliminary point shall be dealt with differently when the practical result of both kinds of dismissal is the same. We are unable to think that the Act could have intended such a curious result.

Therefore again, it seems to us that an order in exercise of the powers given by s. 90(3) is made under s. 98.

We were also referred to K. Kamaraja N adar v. K unju

01n Prabha j ain v.

Gian Chand

Sarkar j.

Thevar (1) and the connected cases. There an objection under s. 90(3) to an election petition similar to that which the appellant took in this case, was described as a preliminary objection and it was said that if it was not decided first the result would be a full-fledged trial of the election petition involving examination of witnesses. It was therefore directed that the preliminary point should be decided first as that might save costs and harassment to the parties by making it possible to avoid the trial of the other issues.

We are unable to hold that this judgment supports the view that an order made under the powers given by s. 90(3) is not an order made at the conclusion of the trial; the direction to decide what has been called the preliminary objection, first does not lead to that conclusion. The Court was not concerned with any question as to when an order under the powers given by s. 90(3) could be made. It W!1S indicating a procedure best suited to the interests of the parties on the facts of that case and not laying down any rule of law.

The last argument advanced was based on s. 99.

That 'section says that at the time of making an order under s. 98 the Tribunal shall also, where the petition contains a charge of a corrupt practice having been committed, make an order recording a finding whether or not such corrupt practice had been committed. It is said that if all orders of the Tribunal dismissing an election petition were held to be orders under s. 98, then, where a petition contained a charge of a corrupt practice and it was dismissed under the powers contained in s. 90(3) the Tribunal had further to make a finding as to whether the commission of a corrupt practice had or had not been proved. It is contended that such a position would be senseless for it would prevent the Tribunal from ever disposing o{ an election petition summarily on a preliminary ground.

Therefore it is said that all orders dismissing an election petition are not orders under s. 98 and that supports the view that an order under s. 90(3) is not an order under s. 98. \Ve are not impressed by this argument. If the proper construction of s. 99 is that an election petition cannot be dismissed on a preliminary

(r) [1959] S.C.R. 583.

I959 point raised under s. 90(3) where it contains charges of corrupt practices having been committed, as the om Prabha Jain learned counsel for the appellant contends, that conv.

truction must have effect however senseless it may Gian Chand appear. Suppose an election is sought to be avoided on the grounds, that the returned. -candidate was not qualified or that one of the nomination papers had been improperly rejected and also on the ground of corrupt practices having been committed by the returned candidate, all of which are good grounds for setting aside an election under s. 100 of the Act. In ' such a case too, if the construction put upon s. 99 by the learned counsel for the appellant is right, the Tribunal cannot allow the petition on any one of the first two grounds, which it could have done after a very summary trial, but must proceed to decide the charges of corrupt practice alleged. This can be said to be eqnally senseless as where having dismissed a petition for non-compliance with s. 117 the Tribunal is made to record a finding on the corrupt practices alleged. On the other hand, if it is not senseless in the one case it is not senseless in the other. 'Ve do not therefore find much force in the argument based on an interpretation of s. 99 supposed to produce senseless results.

All this cannot, in any event, supply a reason for holding that an order which terminates the proceedings arising before an Election Tribunal is not an .order passed at the conclusion of the trial when it was made for the reasons mentioned ins. 90(3). we have earlier stated that the only duty of the Tribunal is to try and decide an election petition and the order on the preliminary point may dispose of that petition. We may also point out that under s. 99 (1) (b), the Tribunal at the time of making an order under s. 98 has also to make an order a warding costs and fixing the amount thereof. If an order authorised by s. 90(3) is not an order under s. 98 then, when dismissing a petition under s. 90(3) the Tribunal would appear to have no jurisdiction to make an order for costs.

Tht can hardly have been intended.

We therefore think that an order dismissing a petition for the reasons mentioned in s. 90(3) is an order

Sarkar ].

r959 under s. 98 and is appealable under s. 116A. In our om Prabha Jain opinion, the ase of Harihar Singh v. Singh Ganga v.

Prasad (1) which took the contrary view, was wrongly Gian Chand decided.

As to the merits of the appeal, we find no difficulty.

Sarkar J.

Under s. 117 of the Act the Treasury receipt has to show a deposit of Rs. 1,000 in favour of the Secretary to the Election Commission. 'J'here is no dispute that the respondent deposited the required amount and enclosed a deposit" receipt with his petition. The 'deposit receipt filed by the respondent contained the following statements on which the appellant's contention is based :- I.

By whom tendered- Gian Chand 2.

Name of the person on Secretary to whose behalf money the Efoction is paid- Commission.

The contention is that the receipt in th.is form showed that the money had been paid by the respondent acting for the Secretary to the Election Commission and not by him in favour of the latter. We are wholly unable to read the deposit receipt in that way.

The second of the two entries reproduced above is intended to indicate the person in whose favour the money has been paid; 'on whose behalf' here clearly i.ndicates in whose favour or for whose benefit. The form of the receipt contains no other heading for indicating the person in whose favour the money was paid and of course it was paid in favour of somebody. That makes it perfectly clear that the words ' on whose behalf' mean in whose favour. It would be absurd to think that the respondent had paid the money into Treasury as security for the costs of the election petition acting as the agent of the Secretary, Election Commission, which would be the position if we were to accept the appellant's contention.

We feel no doubt that the receipt was in full compliance with s. 117 of the Act.

In the result we dismiss this appeal with costs.

• Appeal dismissed.

(•) A.LR. 1958 Pat. 287.

Art. 26

OM Pl~ABHA JAIN

GIAN CHAND & ANOTHER

JAFER IMAM

A. K. SARKAR

K. SuBBA RAO, JJ.

Representation of the People Act

ss. 90(3), 98, 99

Representation of the People Act

s. 90(3)

s. 90(3)

s. 98

s. 98

s. 90(3)

Representation of the People Act, 1951

s. 117

Section 117

s. 117

s. 90

s. 117

s. 116A

s. 98

s. 99

s. 99

s. 98

s. 98

s. 90

Section 98

Section 90

section 81

section 82

section 117

section 85

Section 85

Section 85

section 81

section 82

section 117

s. 85

s. 90

s. 85

s. 90

s. 116A

s. 98

s. 90

s. 98

s. 90(3)

s. 98

s. 90(3)

ss. 86 to 107

s. 86

s. 85

s. 86

Section 86(4)

s. 88

s. 89

s. 98

s. 98

s. 90(3)

s. 90(3)

s. 98

s. 90(2)

s. 86

s. 98

s. 90(2)

s. 98

s. 90(3)

s. 98

ss. 103, 106

s. 103

s. 98

s. 106

Section 107

s. 98

s. 99

s. 90(3)

s. 98

s. 90(3)

s. 98

s. 90(3)

s. 90(3)

s. 90(3)

s. 99

s. 98

s. 98

s. 90(3)

s. 98

s. 90(3)

s. 98

s. 99

s. 90(3)

s. 100

s. 99

s. 117

s. 99

s. 99

s. 98

s. 90(3)

s. 98

s. 90(3)

s. 90(3)

s. 98

s. 116A

s. 117

s. 117


(2) S.C.R.

SUPREME COURT REPORTS 527

SHRI CHANDRIKA PRASAD TRIPATHI v.

SHRI SIV PRASAD CHANPURIA & OTHERS.

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. W ANCHOO, J J.)

Election Petition-Security deposit-Dismissal bf petition by Election Tribunal for defect in deposit-Appeal to Hir, h Court, if competent-Representation of the People Act, I95I (43 of I95I), ss. 90(3), 98, II6-A and IIJ.

Respondent I filed an election petition challenging the election of the appellant. The security required to be deposited under s. n7 of the Representation of the People Act, 1951, was made in the following terms :

"Security deposits for Election Petition of Bargi Assembly Constituency No. 97, Distt. Jabalpur, Madhya Pradesh. Refundable by order of the Election Commission of India, New Delhi."

Before the Election Tribunal the appellant made an application alleging that there was non-compliance with the provisions s. n7 inasmuch as (i) the deposit was not in favour of the Secretary to the Election Commission, and (ii) the amount was only refundable to the depositor and would not be payable to appellant in case the petition was dismissed under s. 90(3).

The Tribunal upheld the objections and dismissed the petition under s. 90(3).

Rspondent l preferred an appeal under s. n6-A of the Act to the High Court. The High Court allowed the appeal, set aside the order of the Tribunal and sent back the petition for trial.

The appellant contended that no appeal lay to the High Court and that there was non-compliance with the provisions of s. n7.

Held, that, an appeal lay to the High Court under s. n6-A of the Act against the dismissal of the election petition under s. 90(3) by the Tribunal. The order passed by the TribuBal under s. 90(3) was an order passed at the, conclusion of the trial of the petition and was in substance and in law one under s. 98.

Once an election petition was entrusted to the Tribunal the trial started and any order passed by the Tribunal which concluded the trial was an order at the conclusiop of the trial.

Harish Chandra Bajpai .v. Tirloki Singh, [r957] S.C.R. 370, referred to.

Gulsher Ahmad v. Election Tribunal, A.LR. r958 Madh.

Pra. 224, approved. Held, further that, there had been substantial compliance with the provisions of s. n7 of the Act. Section n7 was not tp be strictly or technically construed and a substantial compliance with its requirements was sufficient. The security in this case

r959

April 9.

x959 had been made in respect of the election petition in question and it had been credited towards the accounts of the Election Com- Shri Chandrika mission. The use of the words "refundab]e" would not prevent I)rasad Tripatlii the Election Commission from making an order of payment' of the v. amount to the successful party.

Shri Siv Prnsad Kamraj Nadar v. Kitnju Thevar, A.LR. [1958] S.C. 687, Chanpuria applied.

& Othus

CIVIL

APPELLATE JURISDICTION: Civil Appeal No. 343 of 1958.

Appeal by special leave from the judgment and order dated March 8, 1958, of the Madhya Pradesh High Court in First Appeal No. 141 of 1957, arising out of the judgment and order dated December 5, 1957, of the Election Tribunal, Jabalpur, in Election Petition Case No. 1 of 1957.

G. O .. Mathur, for the appellant.

P. Rama Reddy and R. Mahali'f!gier, for respondent No. 1.

1959. April 9.

The Judgment of the Court was delivered by

Gajendr.agadkar ].

GAJENDRAGADKAR, J.-This appeal by special leave arises out of an election petition filed by respondent 1 (No. 320 of 1957) before the Election Commission, Ne:w Delhi, in which he pra.yed that the appellant's election to the Madhya Pradesh Legislative Assembly from Bargi constituency should_be declared to be void and that it should be further declared that he had himself been duly elected from the said constituency. The polling for the election in question was taken on March 9, 1957, and the result was declared on March 12, 1957. Of the three candidates who had stood for election, the appellant secured 9308 votes, respondent 1, 8019 votes and the third ca.ndidate, respondent 2, 3210 votes.

The petition filed by respondent 1 was entrusted to the Election Tribunal, J abalpur, for trial. On October 12, 1957, the appellant filed before the Election Tribunal, an objection under s. 90, sub-s. (3) of the Representation of the people Act, 1951 (hereinafter called tbe Act), alleging that espondent 1 had not complied with the provisions of s. 117 of the Act in regard to

the making of the deposit of the security for costs and '959 praying that his election petition should be dismissed Shri Clzandrika on that account under s. 90, sub-s. (3) of the Act. Prasad Tripathi Respondent 1 disputed these allegations and urged . v. tbat there was no justification for dismissing his peti- Shri Siv Prasad tion under s. 90, sub-s. (3) of the Act.

Chanpt1ria By its order passed on December 5, 1957, the Elec- & Others tion Tribunal held that the provisions of s. 117 were Gajendragadkar J. mandatory and that they had not been complied with by respondent 1. In the result the application filed by the appellant was allQwed, his objection was upheld and the election petition presented by respondent 1 was dismissed under s. 90, sub-s. (3) of the Act. - On December 27, 1957, respondent 1 preferred an appeal in the High Court of Madhya Pradesh at Jabalpur against the said order (Appeal No. 141 of 1957). In the High Court a preliminary objection was urged on behalf of the appellant that the appeal preferred by respondent 1 was incompetent under s. 116A of the Act. This objection was overruled and the merits of the appeal were considered by the High Court. On the merits the High Court held that respondent 1 had substaatially complied with s. 117 and so the order passed by the Election Tribunal dismissing the election petition filed by respondent 1 was set aside and the said petition was sent back to the Election Tribunal for disposal in accordance with law.

On February 22, 1958, the appellant applied to the High Court for a certificate of fitness but his application was dismissed. Thereupon the appellant applied for, and obtained, special leave to appeal from this Court on April 14, 1958. That is how this appeal has come to this Court.

The first point which calls for our decision in this appeal is whether the High Court was rigt in holding that the appeal preferred before it by respondent 1 was competent. The appellant's contention is that the impugned order was passed under s. 90, sub-s. (3) and no appeal is provided against such an order under s. 116A. Section 116A provides that an appeal shall lie from every order made by the tribunal under s. 98

'959 or s. 99 to the High Court of the State in which the tribunal is constituted. We are not concerned in Shri Chandrika Prasad Tripathi the present appeal with s. 99.

The case for respondv.. ent 1 is that in substance and in law the impugned Shd Siv hasad order must be deemed to have been passed under s. 98.

Chanpuria That is the view which the High Court has taken and "' Others we are satisfied that the High Court is right.

Gajendragadkar J.

It is true that in terms and in f?rJ:? the order was passed under s. 90, sub-s. (3); and it 1s a.lso true that the right to prefer on appeal is a creature of. the statute and no appeal can be held to be competent unless it is shown that such a right flows from the relevant statutory provision itself. In order to decide whether or not an order passed under s. 90, sub-s. (3) can be regarded in law and in substance as an order passed under s. 98, it would be relevant to consider the scope and effect of the provisions of the said two sections. Section 98(a) provides that at the conclusion of the trial of an election petition the tribunal shall make an order dismissing the election petition. There is no doubt that in the present case the Election Tribunal has dismissed the election petition filed by respondent 1.

But the appella.nt's contention is that this d_ismissal cannot be said to be under s: 98(a) because the order dismissing the petition has not been passed at the conclusion of the trial of the election petition. This argument is not well-founded.

Section 90, sub-s. (3) under which the impugned order purports to have been passed occurs in ch. III of Pt. VI which deals with the trial of election petitions. In other words, s. 90, sub:s. (3) confers power on the tribunal to dismiss the election petition after the trial of the election petition has commenced.

The scheme of ch. III clearly indicates that once an election petition is referred to an Election Tribunal for trial under s. 86 the tribunal is possessed of the petition and all proceedings before it are proceedings in the trial of the said petition. Section 85 shows that for failure to comply with the provisions of ss. 81, 82 and 117, the Election Commission is empowered to dismiss the election petition. If the Election Commission exercises its jurisdiction and passes an order

dismissing any election petition, it may be said that the z959 election petition never reached the stage of trial ; but Shri Chandrika once the petition has passed the scrutiny of the Elec- Prasad Tripatlii tion Commission under s. 85 and it has been referred v. to the Election Tribunal for trial, any further action Shri Siv Prasad taken by the parties or any order passed by the tribu- Chanpuria nal under the said petition would constitute a part of & Others the trial of the said petition. This question has been Gajendragadkar J. incidentally considered by this Court in Barish Chandra Bajpai v. Triloki Singh (1) while it was dealing with s. 90, sub-s. (2) of the Act; and it has been held that "the provisions of ch. III read as a whole clearly show that ' the trial ' is used as meaning the entire proceedings before the tribunal from the time the petition is transferred to it under s. 86 until the pronouncement of the award". _Therefore, there can be no doubt that the order passed under s. 90, sub-s. (3) is an order passed at the conclusion of the trial. It i~ true that it is an order on a preliminary point of law raised by the appellant; but even so the decision of the preliminary issue is undoubtedly a part of the trial of the petition and it cannot be said that the order passed on such a preliminary point is not an order passed at the conclusion of the trial when it, in fact, concludes the trial.

Section 90, sub-s. (3) provides that the tribunal shall dismiss an election ptition which does not comply with the provisions of ss. 81, 82 or 117 notwithstanding that it has not been dismissed by the Election Commission under s. 85. It would thus be clear that an objection raised against the competence of the election petition on the ground that the provisions of the aforesaid sections have not been complied with can be considered by the Election Commission suo motu under s. 85 ; and if it is upheld the election petition can be dismissed without any further enquiry; but if the Election Commission does not dismiss the petition under s. 85, then the same objection can be raised before the Election Tribunal by the respondent to the election petition; and when it is so raised it assumes the character of a preliminary objection and {r) [1957] S.C.R. 370, 387.

'959 is dealt with by the Election Tribunal as any prelimi-

51 . Cl d .k nary objection would be dealt with by a civil court p,;; ad ·~;;;:1~; under the Code of Civil Procedure. That being so, a v. preliminary objection has been tried and the decision Shri Siv Prasad on the preliminary objection being in favour of the

Ckanpuria respondent the election petition is dismissed. Though .s. Others the order of dismissal in form may be under s. 90, sub-

Gajendragadkar 1. s. (3), it is in substance and in law an order of dismissal passed at the conclusion of the trial and must be deemed to be an order under s. 98(a). That is tho - view which the Madhya Pradesh High Court has taken in Gulshar Ahmed v. Election Tribunal(') and it was this decision which was followed by the High Court in the present proceedings. In our opinion, therefore, the contention raised by the appellant that the appeal preferred by respondent 1 before the High Court was incompetent must be rejected.

The question of construing s. 90 can be considered from another point of view. It provides for the procedure before the tribunal and lays down that it is open to the tribunal to dismiss an election petition under s. 90, sub-s. (3); but this being a procedural provision is would not be unreasonable to hold that, when the actual order dismissing the petition is passed, it would be referable to the provisions of s. 98(a).

The same conclusion would follow if we consider the provisions of ss. 103, 106 and 107. It cannot be suggested that the order passed by the tribunal dismissing the election petition for non-compliance of s. 117 is not required to be communicated to the Election Commission under s. 103 or transmitted by the Election Commission to the appropriate authority under s. 106. 8imilarly it cannot be said that such an order would not take effect as soon as it is pronounced by the tribunal under s. 107.

It would thus be noticed that though the provisions of these sections are obviously applicable to an order dismissing the election petition on the ground of noncompliance of s. 117, in terms the said sections refer to orders passed under s. 98 or s. 99. Therefore, we think it would be reasonable to hold that, where the tribunal dismisses an election petition by virtue of the provi-

(1) f\.l.R. 1958 Madh. Pra. 224.

sions contained in s. 90, sub-s. (3), the order of dismisr959 sal must be deemed to have been made under s. 98. Shri Chandrika Similarly s. 99(1) (b) which empowers the tribunal to Prasad Tripathi fix the total amount of costs payable and to specify v. the person by and to whom that shall be paid in terms Shri Siv Prasad refers to cases where an order is made under s. 98. It Chanpuria cannot be suggested that, where an order of dismissal & Others is passed under s. 90, snb-s. (3), the tribunal cannot Gajendragadkar J. make an appropriate order of costs.

This provision - also indicates that the order passed under s. 90, subs. (3) is in law and in substance an order passed under s. 98(a). It is true that in cases where such an order is passed s. 99(1)(a) would not come into operation, but that can hardly affect the position that an order under s. 90, sub-s. (3) is nevertheless an order under s. 98.

We would like to add that by Act 58 of 1958 an explanation has been added to s. 90, sub-s. (3) which clarifies the legislative intention on this point. This explanation provides that an order of the tribunal dismissing an election petition under this sub-section shall be deemed to be an order made under cl. (a) of s. 98.

After the enactment of this explanation there can be no doubt that an order passed under s. 90, sub-s. (3) would be appealable under s. 116A of the Act.

That takes us to the second point raised by the appellant that the High Court was in error in holding that respondent I had complied with the provisions of s. 117 of the Act.

Section 117 provides that the petitioner shall enclose with the petition a Government Treasury Receipt showing that a deposit of Rs. 1,000/-

has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for costs of the petition. In the present case, respondent 1 has deposited the requisite security, but it is urged that the security has not been deposited as required by s. 117. This is how the security deposit has been made:-

r959

Shti Ghandrika Prasad Tripathi v.

Shti ,-., iv Prasad Chanpuria

& Others

Gajcndragadluir ].

534 SUPREME COUitT REPORTS [1959] Supp.

By whom brought.

Shiv Pra.sad

Chanpuria.

On what account.

Security deposits for Election Petition of Bargi Assembly Constituencv No. 97 Dist t.; Jabalpur, Madhya Pr a d es h.

Refundable by order of the Election Comm1ss10n of India, New Delhi.

Under Amount. rupees in words.

Rs. One

Thousand and one only.

Rs. A.P. 1,000-0-0.

Total ... 1000-0-0.

The argument is that the security has not been depo-

8ited in the name of the Secretary to the Election Commission as required by s. 117 and it is deposited with the condition that it is refundable by the order of the Election Commission of India. In other words, the only power which the Election Commission of India can exercise in respect of the security is to refund the amount to respondent 1 ; and it would not be competent to the Commission to direct the amount to be paid to the appellant even if the election petition filed by respondent 1 is dismissed with costs. In our opinion, this objection is purely technical. It has recently been held by this Court in Kamaraj Nadar v.

K unju Thevar (') that s. 117 should not be strictly or technically construed and that wherever it is shown that there has been a substantial compliance with its requirements the tribunal should not dismiss the election petition under s. 90, sub-s. (3) on technical grounds.

Indeed it is clear that the receipt with which this Court was concerned in the case of Kamaraj Nadar ('), was perhaps slightly more defective than the receipt in the present case. The argument based on the use of the word "refundable" ignores the fact that the security in terms has been made in respect of the election petition in question and it has been duly credited as towards the account of the Election Commission.

Therefore, there can be no doubt that if an (1)

A.I.R. 1958 S.C. 687.

occasion arises for the Election Commission to make r959 an order about the payment of this amount to the Shri Chandrika successful party the use of the word "refundable" will Prasad Tripathi cause no difficulty whatever. We hold that the secuv. rity has been made by respondent 1 as required by Shri Siv Prasad s. 117 of the Act and would be at the disposal of the Chanpuria d. <!>- Others Election Commission in the present procee mgs. _ We would like to add that even s. 117 has been Gajendragadkar J. subsequently amended by Act 58 of 1958 and the reference to the Secretary has been deleted.

The result is the appeal fails and must be dismissed with costs.

Appeal dismissed.

BHAGW AN SINGH v.

RAMESHW AR PRASAD SASTRI & OTHERS

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. W ANCHOO, JJ.)

Election Dispute-Disqualification for membership-Election to State Legislature-Interest in contracts-Contract entered into as Mukhiya of Panchayat-Representation of the People Act, r95r (43 of I95I), SS. 7(d), 8I, IOO(I)(a).

The election of the appellant as a member of the Bihar State Assembly was challenged under s. 7(d) of the Representation of the People Act, 1951, by the first respondent who was also a candidate for election for the same constituency, on the ground that at the date of the nomination the appellant had an interest in contracts for execution of works undertaken by the Bihar Government, and that his nomination had been improperly accepted.

The appellant's plea inter alia was that he had executed the contracts not in his individual capacity but as the Mukhiya of the Village Panchayat and therefore the disqualification imposed bys. 7(d) of the Act could not be invoked against him. The contracts in question related to community projects undertaken in pursuance of the Second Five Year Plan, under which the execution of different works adopted under the plan was to be by popular local agencies like Village Panchayats. The contracts were all in the prescribed form and the appellant, at the com-

I959

April r4.

CHANDRIKA PRASAD TRIPATHI

SIV PRASAD CHANPURIA & OTHERS

B. P. SINHA

P. B. GAJENDRAGADKAR

Representation of the People Act

ss. 90(3), 98

Representation of the People Act, 1951

s. 90(3)

s. 90(3)

s. 90(3)

s. 90(3)

s. 98

s. 90

Representation of the people Act, 1951

s. 117

s. 90

s. 90

s. 117

s. 90

s. 116A

s. 117

s. 90

s. 116A

Section 116A

s. 98

s. 99

s. 99

s. 98

s. 90

s. 90

s. 98

Section 98(a)

Section 90

s. 90

s. 86

Section 85

ss. 81, 82 and 117

s. 85

s. 90

s. 86

s. 90

Section 90

ss. 81, 82

s. 85

s. 85

s. 85

the Code of Civil Procedure

s. 90

s. 98(a)

s. 90

s. 90

s. 98(a)

ss. 103, 106 and 107

s. 117

s. 103

s. 106

s. 107

s. 117

s. 98

s. 99

s. 90

s. 98

s. 99(1)

s. 98

s. 90

s. 90

s. 98(a)

s. 99(1)(a)

s. 90

s. 98

s. 90

s. 98

s. 90

s. 116A

s. 117

Section 117

s. 117

s. 117

s. 117

s. 90

s. 117

s. 117

Representation of the People Act

SS. 7(d), 8I

s. 7(d)

Representation of the People Act, 1951


(2) S.C.R. SUPREME COURT REPORTS 535

occasion arises for the Election Commission to make r959 an order about the payment of this amount to the Shri Chandrika successful party the use of the word "refundable" will Prasad Tripathi cause no difficulty whatever. We hold that the secuv. rity has been made by respondent 1 as required by Shri Siv Prasad s. 117 of the Act and would be at the disposal of the Chanpuria d. <!>- Others Election Commission in the present procee mgs. _ We would like to add that even s. 117 has been Gajendragadkar J. subsequently amended by Act 58 of 1958 and the reference to the Secretary has been deleted.

The result is the appeal fails and must be dismissed with costs.

Appeal dismissed.

BHAGW AN SINGH v.

RAMESHW AR PRASAD SASTRI & OTHERS

(B. P. SINHA, P. B. GAJENDRAGADKAR and

K. N. W ANCHOO, JJ.)

Election Dispute-Disqualification for membership-Election to State Legislature-Interest in contracts-Contract entered into as Mukhiya of Panchayat-Representation of the People Act, r95r (43 of I95I), SS. 7(d), 8I, IOO(I)(a).

The election of the appellant as a member of the Bihar State Assembly was challenged under s. 7(d) of the Representation of the People Act, 1951, by the first respondent who was also a candidate for election for the same constituency, on the ground that at the date of the nomination the appellant had an interest in contracts for execution of works undertaken by the Bihar Government, and that his nomination had been improperly accepted.

The appellant's plea inter alia was that he had executed the contracts not in his individual capacity but as the Mukhiya of the Village Panchayat and therefore the disqualification imposed bys. 7(d) of the Act could not be invoked against him. The contracts in question related to community projects undertaken in pursuance of the Second Five Year Plan, under which the execution of different works adopted under the plan was to be by popular local agencies like Village Panchayats. The contracts were all in the prescribed form and the appellant, at the com-

I959

April r4.

r959

Bhagwan Singh

mencement of the contract, described himself by his name, stating that he belonged to the village. The preamble to the contract showed that the appellant undertook to carry out the construction of the development project under local works prov.

Rameshwar Prasad Sastri

Gajendragadkar

gramme mentioned in the contrast as per estimate attached thereto, that he agreed to execute the work according to and subject to the terms and conditions contained therein and that he undertook to contribute 50% of the cost in cash and labour.

At the end of the contract he signed as Mukhiya, giving his address as the Gram Panchayat. The Election Tribunal found in favour of the appellant and dismissed the election petition, but, on appeal, the High Court took the view (1) that the description of the appellant given by him at the time when he signed the contracts was not a term of the contract and could not therefore support his plea that he had executed the contract as Mukhiya of the Panchayat, and (2) that the fact that he undertook liability to execute the contracts as required and to become liable for payment of any fine imposed by the local government officer in case of his default showed obligations of a personal character inconsistent with his plea.

Held, that, on a proper construction of the contracts taking into account all the terms and conditions as a whole and considering them in the light of the background of the Second Five Year Plan, when the appellant signed the contracts as the Mukhiya of the Village Panchayat he acted as its agent and not as an individual acting in his personal capacity.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 139 of 1959.

Appeal by special leave from the judgment and order dated January 8, 1959, of the Patna High Court in Election Appeal No. 1 of 1958, arising out of the judgment and order dated November 30, 1957, of the Election Tribunal, Patna, in Election Petition No. 353 of 1957.

B. K. P. Sinha and D. P. Singh, for the appellant.

G. 0. Mathur and Dipak D. Ohoudhri, for respondent No. 1.

R.H. Dhebar, for respondent No. 3. 1959.

April .14.

The Judgment of the Court w11.s delivered by J.

GAJENDRAGADKAR, J.-This appeal by special leave arises from the election petition filed by respondent, 1 (No. 353 of 1957) in which he claimed a declaration that the election of the appellant as a member of the

Bihar Legislative Assembly Maner Constituency r959 should be declared to be void. In the last General Election for the said constituency which was held in Bhagwan Singh v.

February-March 1957, there were three candidates, Rameshwar the appellant, respondent 1 and respondent 2.

The Prasad Sastri last date for filing nomination papers at the said elec- - tion was January 29, 1957; the said papers were Gajendragadkar J. scrutinised on February 1, 1957. Respondent 1 had challenged the validity of the appellant's nomination paper at the said scrutiny but the returning officer had overruled the objection raised by respondent I and had accepted the nomination paper of the appellant along with those of the two other candidates.

After the counting of votes was done on March 3, 1957, the appellant was declared duly elected at the election inasmuch as he had got 9,826 votes while respondents 1 and 2 had got 7,526 and 49 votes respectively. Thereupon respondent 1 filed his election petition under s. 81 of the Representation of the People Act, 1951 (hereinafter called the Act).

In his petition respondent 1 challenged the election of the appellant on several grounds all of which were controverted by the appellant. On the allegations of the parties the tribunal had framed several issues and parties had led evidence on them. At the stage of arguments, however, only a few issues were pressed by respondent 1 and all of them were found against him and in favour of the appellant. In the result the tribunal dismissed the election petition on November 30, 1957.

Against the said decision of the tribunal respondent 1 preferred an appeal in the High Court of Judicature at Patna; and in his appeal he pressed only issue No. 1.

This issue was whether the nomination of the appellant was hit by the provision of s. 7(d) of the Act and as such whether the said nomination had been improperly accepted. On this issue the tribunal had found in favour of the appellant but the High Court reversed the said finding and accepted the plea of respondent 1.

As a result of this finding the High Court allowed the appeal preferred by respondent I and 68

1959 declared on January 8, 1959, that the election of the appellant. was void nuder s. IOO(l){a) of the Act.

Bhagw:~ Singh The validity of the appellant's nomination has been

Rameshwa. challenged under s. 7(d) of the Act on the ground that Prasad Sastd at the date of the nomination he had an interest in a - contract for the execution of works undertaken by the Gajendragadkar J. Bihar Government. There is no doubt that if a person is interested in a contract for the execution of any work undertaken by the appropriate Government he is disqualified for membership of the State Legislature in question. The appellant, however, denied that. the disqualification imposed by s. 7(d) could be invoked against him.

His case was that the contracts in question had not been undertaken by the Bihar Government but they had been undertaken by the Central Government; and he also urged that he had not taken the said contracts individually in his personal capacity, but as the Mukhiya of the Jeorakhan Tola Gram Panchayat. On both these issues the Election Tribunal and the High Court have differed; and it is the said two issues that arise for our decision in the present appeal. It is clear that if the appellant succeeds in showing t.hat he had entered into the impugned contracts not individually but on behalf of the Panchayat of which he was the Mukhiya it would be unnecessary to consider whether the works covered by the said contracts had been undertaken by the Government of Bihar. Let us therefore first consider that point.

The impugned contracts are five in number. They were for the execution of works under local develop. ment works programme envisaged under the Second Five Year Plan formulated by the Government of India. These contracts are evidenced by five documents, Exs. 16-A, B, C, D & E. The first is for the construction of Beyapore-Jeorakhan Tola Road, the second for the construction of the Beyapore M. E.

School, the third for the construction of a Dispensary at Jeorakhan Tola, the fourth for the construction of the Gram Panchayat building, and the last for the construction of a well at the said village. It is admitted by the appellant that these contracts had not been completed at the time of his nomination.

In considering the appellant's plea that he had exez959 outed these contracts as a Mukhiya of the Village Bhagwan Singh Panchayat of his village, it would be necessary to v. bear in mind the background of the scheme in pursu- Rameshwar ance of which these works were undertaken. The Prasad Sastri Second Five Year Plan published by the Planning . - Commission in 1956 shows that the programme ofGa; endragadkar f. starting these works was treated as a part of the cooperative movement and the Commission had therefore recommended that the States were to sponsor and assist actively in the organisation and development of Village Panchayats which was an important constituent of the programme of fostering corporate life in the rural areas as it would promote among the rural community active interest in the development programmes of the villages. The object of this programme which would operate in areas not yet reached by the National Extension Service was to enable village communities to undertake works of local benefit mainly with their own labour. The Commission realised that the resources of all the States taken together would fall far short of the requirements of this Plan and so it recommended large transfers of resources from the Centre to the States. In this connection the conclusion of the Commission was that out of Rs. 200 crores sanctioned for the year 1957-58, 12 crores would be required for the Centre for schemes undertaken or directly sponsored by the Community Project Administration and 180 crores were to form part of the balance for the ctates. Thus it is obvious that the basic idea underlying the Plan was to voke popular response to the community projects undertaken in pursuance of the Plan and to leave the execution of different works adopted under the Plan to be fulfilled by popular local agencies like Village Panchayats.

This policy was emphasised by the Secretary of the Planning Commission in his communication to all State-Oovernments, No. POf.Pub/52/53 dated August

11, 1953 (H. 1).

This communication set out the seven categories of work which were most suitable for assistance and it said that the local contribution in cash or kind or through voluntary labour together

540 SUPl~EME COURT REPORTS [1959] Supp.

'959 with any contribution that the State Government or a local body might make should be a minimum of 50% Bhagwan Singh of the total cost of each work.

The intention was to v.

Rameshw•• spread the benefit over as wide an area and to as Prasad Sastri many people as possible.

The State Governments - were accordingly requested to arrange for a detailed Gajend.agadkar J. scrutiny of the schemes before they were accepted and for making adequate provisions providing for their proper execution. They were also required to nominate a liaison officer for each district or other suitable unit for the purpose of checking the execution of the works and for maintenance of such initial accounts as might be necessary. This communication makes detailed provisions about financing and accounting procedures to be followed and required the State Governments to make progress reports from time to time.

It appears that the Government of India was aware that the District Boards whose primary responsibility it was to sponsor-these undertakings would find the project beyond their financial resources and so it accepted the recommendation of the Planning Commission to contribute 50%. of the cost of each of the schemes on the condition that the remaining half had to be found by the District Board or by the public to be benefited by it in the form of cash or voluntary labour. · The five impugned contracts related to community projects of the kind envisaged by this programme. By its letter dated February 27, 1954 '(H. 2) the Bihar Government had advised all the District Local Boards , to assist the execution of such projects and to afford all facilities to and .co-operate with the district officers in the execution of the programmes undertaken by these projects without charging any remuneration for the same. The idea clearly was that if the Village Panchayats sponsored works undertaken under these programmes they should encourage people to contribute labour and even money. The result would be that the works undertaken would benefit the community at large and if any saving was made in executing the contract it would enure for the benefit of the village Panchayats that were usually expected to be the sponsoring units.

It is in the light of this background that we have to z959 consider the question whether the contracts in quesd b h 11 h d. .

Bhagwan Singh tion had been execute y t e appe ant in is in iv1v. dual capacity as contended by respondent 1 or in his Rameshwa~ capacity as the Mukhiya of the Village Panchayat as Prasad Sastri urged by the appellant. . - The four contracts evidenced by Exs. 16A, 0, D and Ga; endragadkar J.

E are all similarly executed whereas contract 16-B which is in respect of the construction of the Beyapo:r; e M. E. School is somewhat differently worded.

With regard to this latter contract both the Election Tribunal and the High Court are agreed that it had been executed by the appellant as the Secretary of the Beyapore MadhyamikVidyalaya and that in this contract the appellant was not personally interested. The Election Tribunal took the view that the other contracts ar.e substantially of the same character whereas the High Court has held that they are entirely different and that the appellant has personally executed them. The question which we have now to decide is whether this view of the High Court is right.

We would take Ex. 16-A as typical of the remaining four contracts. The material terms of this contract are 8 in number and they are all in the prescribed form.

At the commencement of the contract the appellant has described himself by his name and he has stated that he belongs to the village of Jeorakhan Tola and that his profession is cultivation. The preamble to the contract shows that the appellant undertook to carry out the construction of the development project under local works programme mentioned in the contract as per estimate attached thereto and he agreed to execute the work according to and subject to the terms and conditions contained therein, and he also undertook to contribute 50% of the cost in cash and labour. At the end the appellant has signed as Mukhiya and has given his address as Jeorakhan Tola Gram Panchayat.

The High Court took the view that the description of the appellant given by him at the time when he signed the contract was not a term of the contract and could not therefore support his plea that he had executed the contract as Mukhiya of

Bhagw.in .5ingh

lamcshwar J'rasad Sastri

Gajendragadkar

the Panchayat. It is on this ground that the High Court distinguished this and the other three allied contracts from the school contract, Ex. 16-B. In this latter contract the appellant has described himself as the Secretary, Madhyamik Vidyalaya, both at the commencement of the document and at the end where J. the appellant has signed. In our opinion, the distinction made by the High Court between the two sets of contracts is not valid. We do not see any reason to take the view that the description given by the appellant about his status while he signed the contract is no part of the contract itself. Incidentally we may observe that the contract is accepted by the officer who signs as the S. D. 0., Dinapore. The designation of the officer given by him while signing the acceptance of the contract indicates the character in which the officer has accepted the contract. Similarly. the description given by the appellant about his status and character when he signed the contract should be taken to denote the character in which he executed the contract.

The High Court also thought that els. 4 and 7 by which the appellant undertook liability to execute the contract as required and to become liable for payment of any fine imposed by the local government officer in case of his default clearly showed obligations of a personal type which were inconsistent with his plea that he had entered into the contract as the Mukhiya of the Panchayat. We think that this argument has no force. If the nature of the liability undertaken by these two clauses necessarily involves the conclusion that the execution of the contract must be by an individual person, then it is significant that the same two clauses occur in the school contract and yet the High Court has held .that the said contract has been executed by the appellant not in his individual capacity but as the Secretary of the Madhyamik Vidyalaya. Therefore too much reliance cannot be placed upon these two clauses to support the view that the contract has been executed by the appellant personally.

Besides, the High Court has not properly considered the term of the contract by which the contracting

party undertakes to contribute 50% of the cost of the x959 work in cash or labour. In other words, the contract- Bhagwan Singh ing party becomes a sponsoring agent of the contract v. and agrees to undertake 50% of its cost. It is very Rameshwnr difficult to appreciate the suggestion that the appellant Prasad Sa<tri personally and in his individual character agreed to . - contribute 50% of the cost in cash or labour. In Ga; endragadkar J. ordinary course a person who undertakes to carry out a building contract expects to make profit and would never agree to contribute 50% of the cost of the contemplated work. This clause clearly indicates that the sponsoring of the contract was really done by the Village Panchayat which agreed through its Mukhiya that it would contribute 50% of the cost either in cash or in labour. Consistently with the general policy of

Plan the Village Panchayat became a sponsoring agent and hoped and expected to obtain popular response from the villagers who would contribute their labour and thus make up the 50% of the cost of the intended work. Therefore, in our opinion, if the contract in question is considered in the light of the background of the Plan of which it forms one item, and all its conditions are taken into account together, there can be no doubt th'at the appellant as the Mukhiya of the Village Panchayat acted as its agent when he signed the contract, and not as an individual acting in his personal capacity.

This position is also corroborated by the record kept by the Village Panchayat in respect of these contracts. This record consists of the several proceedings before the Village Panchayat, the budgets adopted by it and the resolutions passed by it from time to time in respect of these contracts. It had been alleged by respondent 1 that the whole of this record had been fabricated for the purpose of the present proceedings. The Election Tribunal has made a definite finding against respondent 1 on this point: It has considered the oral evidence given by the appellant and other witnesses in proving the said record. It has examined the entries themselves on their merits and has taken into account the fact that some of the exhibits showed that they had been signed and

'959 approved by the District Panchayat Officer from time to time. The tribunal, therefore, thought that it was Bhagwan Singh

v. imposRible to believe that all persons who purported Ram., hwa. to sign the record had helped the appellant to manu- Prasad SastYi facture it simply because the appellant was the

. - Mukhiya of the village.

The judgment of the High Gaymdragadkar J. Court shows that it was not prepared to reverse this finding in terms. It has, however, made certain observations in respect of this record which would show that it was not prepared to attach any importance to it. "The papers", says the judgment, "do not inspire much confidence and cannot be relied upon in proof of the facts disclosed by them". It is unfortunate that when a serious allegation was made against the whole of the record alleged to have been kept by the Village Panchayat and it had been categorically rejected by the Election Tribunal, the High Court should not have made its own finding on the point in clear and unambiguous terms.

The oral evidence led by the appellant in support of the record and the other material circumstances considered by the Election Tribunal do not appear to have been properly taken into account by the High Court in dealing with this point. The High Court was, however, impressed by what it called two defects in respect of this record. It observed that the accounts had not been audited as required by r. 20 of the Bihar Gram Panchayat Account Rules, 1949, and that the cash balance had not been kept by the Mukhiya in the nearest Post Office Savings Bank or in any recognised Co.operative Bank or a Government Treasury in the name of the Panchayat as required by r. 8.

These two defects may undoubtedly suggest that the officers of the Panchayat including the appellant had not acted properly and had not complied with the obligations imposed by the said rules ; but it is difficult to understand how the said two defects can have a material and direct bearing on the question as to whether the record had been fabricated. If the High Court intended to hold that the record had in fact been fabricated it should have considered the relevant evidence and the material circumstances

more carefully and should have made a definite finding r959 in that behalf. To say that the record bore onJy the signatures of the appellant and his clerk and to seek Bhagw~'. Singh to draw an adverse inferene from that fact is, in our Rameshwar opinion, adopting a wrong approach to the question.

Prasad Sastri If the appellant was the Mukhiya he was bound to - sign the record, and so was the clerk bound to write Gajendragadkar J. it; that cannot therefore be treated as a suspicious circumstance by itself.

We have carefully examined this question and we do not see any reason why the well-considered finding of the Election Tribunal on this point should not have been accepted. Therefore, we must assume that the Panchayat record produced by the appellant is not shown to have been fabricated. .

Besides, the High Court itself appears to have assumed that this record showed that there was an understanding between the appellant and the Village Panchayat in regard to the financial obligations involved in the execution of the impugned contracts. "It might well be", says the judgment," that the loss or the profit was ultimately to be borne or pocketed by the Gram Panchayat itself'.'; but that, according to the High Court," does not take away the effect of the contract itself which on the face of it was entered into by the appellant himself". If the Panchayat agreed to bear the loss or take the profit flowing from the performance of the contract then it clearly supports the appellant's case that he had executed the contract as the Mukhiya of the Panchayat. The arrangement to which the High Court refers, if genuine, would be wholly inconsistent with the case set up by respondent I that the contract had been executed by the appellant personally.

The High Court has also held that the appellant had not made out this specific case either before the returning officer when his nomination was challenged or in the present proceedings when he filed his written statement. The appellant had no doubt stated in reply that he had no interest in any contract undertaken by the State Government. According to the

x959 High Court his failure to add the further particular that the contract had been executed by him on behalf Bhagwan Singh f h p h d 1 v. o t e anc ayatshows that the sai pea is an after- Rameshwa. thought. We are unable to see the force of this criti- P.asad Sast.i cism. But apart from it, the question raised by the - appellant relates to the construction of the contract Gajendragadkar J. and we do not see how the construction of a document can be prejudicially affected by the failure of the party to make a more specific and more precise plea in his written statement. We have no doubt that, if the contract is considered as a whole, it would show that the appellant had executed it as the Mukhiya of the Village Panchayat and this conclusion cannot be affected by the alleged defect in the plea taken by him in the written statement.

The High Court has also relied on the fact that if the contract was intended to be executed by the 'appellant on behalf of the Panchayat it should have been executed in the name of the corporate body as required by s. 6 of the Bihar Panehayat Raj Act (Bihar Act 7 of 1958). It may be that the Gram Panchayat is a body corporate by the name specified in the notification under sub-s. (1) of s. 3 and has a perpetual succession and a common seal, and so has power to contract in the name of the body corporate; but as the judgment of the High Court itself points out the in validity of the contract would not affect the merits of the issue raised under s. 7(d) of the Act.

That is the view taken by this Court in Ohatturbhuj Vithaldas Jasani v. Moreshwar Parashram (1), and that in fact is the point made by the High Court in rejecting the appellant's contention that since the contract was invalid he could not be said to be interested in it under s. 7(d) of the Act. Therefore, the invalidity of the contract cannot help us in deciding the question as to whether, on its true construction, the contract can be said to have been executed by the appellant in his personal capacity or as the Milkhiya of the Village Panchayat. Our conclusion, therefore, is that the four impugned contracts have been executed by the appellant as the Mukhiya of the Village

(1) [1954] S.C.R. 817.

Panchayat just in the same way as he had executed the z959 school contract as the Secretary of the Vidyalaya in b Bhagwan Singh question. That eing so, s. 7(d) cannot be invoked v. against him. In view of this conclusion it is unneces- Rameshwar sary to decide whether the works in question had Prasad Sastri been undertaken by the Government of Bihar or by - the Central Government. .

Gajendragadkar ].

The result is that the appeal must be allowed, the order passed by the High Court set aside arid that of the tribunal restored ; respondent 1 shall pay the.

costs of the appellant throughout; and the Election Commission shall bear their own.

We would like to add that, after this appeal was argued before us on April 2, 1959, we had announced our decis!on that the appeal would be allowed and that the judgment would be delivered later on in due eourse. It is in pursuance of that order that the present judgment has been delivered.

Appeal allowed.

M/S. MAHARANA MILLS (PRIVATE) LTD. v.

THE INCOME-TAX OFFICER, PORBANDAR

(B. P. SINHA, J. L. KAPUR and M. HrnAYATULLAH, JJ.)

Income Tax-Depreciation-Written Down V alue-C amputation for prior years-Whether binding for succeeding years-Fresh calculation for written down value by Income-tax Officer-Notice to assessee-When essential-Indian Income-tax Act, r922 (XI of r922), ss. ro(z)(vi), 35(r), 63,

Sub-section (r) of s. 35 of the Indian Income-tax Act, 1922, provided: " .................. the Income-tax officer may ...... on his own motion rectify any mistake apparent from the record ...... and shall ...... rectify any such mistake which has been brought to his notice by an assessee: Provided that no such rectificatioa shall be made, having the effect of enhancing or reducing a

I959

April I4.

s. 117

s. 117

BHAGW AN SINGH

RAMESHW AR PRASAD SASTRI & OTHERS

B. P. SINHA

Representation of the People Act

SS. 7(d), 8I

s. 7(d)

Representation of the People Act, 1951

s. 81

Representation of the People Act, 1951

s. 7(d)

s. 7(d)

s. 7(d)

s. 6

s. 3

s. 7(d)

s. 7(d)

s. 7(d)

Income-tax Act

s. 35

Indian Income-tax Act, 1922