...

3 S.O.R. SUPREME COURT REPORTS 91

of the Act of 1913 may be continued after the repeal of that Act, it follows that the .; District Judge of Poona continues to have jurisdiction to entertain it. If it were not so, then s. 6 would become infructuous.

For these reasons we think that the appeal J'hust fail and it is therefore dismissed with costs.

Appeal dismissed.

SHRI BALWAN SINGH v.

SHRI LAKSHMI NARAIN & OTHERS

(B. P. SINHA, O.J., JAFER IMAM, A. K. SARKAR,

K. N. WANCHOO AND J. 0. SHAH, JJ).

Election Petition-Corrupt Practice-Hiring vehicle for conveyance of electors-Pleadings-Particulars of contract of hiring, if necessary-Representation of the People Act, z95z, (43 of z95z), ss. 83(z)(b), 90(3) and z23(5).

The first respondent filed an election petition for an order that the election of the appellant be declared void on the ground that the appellant had committed the corrupt practice under s. 123(5) of the Representation of the People Act, 1951, in that he had hired a tractor for conveying women electors from their houses to places of polling and back. By an amendment application the first respondent gave particulars about the conveying of voters, but he did not give any particulars regarding the contract of hiring nor did the appellant ask for such particulars. At the trial the first respondent led evidence in respect of the contract of hiring and the appellant raised no objection to the relevance of that evidence. The Election Tribunal dismissed the petition but on appeal the High Court held the charge proved and declated the election of the appellant void.

The appellant contended that the election petition ought to have been dismissed because particulars of the contract of hiring which was an essential ingredient of the corrupt practice had not been given.

Held, (per Sinha ; c. ]., Jafer Imam, K. N. Wanchoo and J.C. Shah, JJ), that the corrupt practice under s. 123(5) was the conveying of electors to and from the polling station and not the contract of hiring. If the election petition gave particulars about the use of a vehicle for conveying of electors to; and from the polling station, the failure to give particulars of the contract of hiring, as distinguished from the fact of hiring, did not render the petition defective.

An election petition was not liable to be

B. M. Sugar Syndicate Ltd. v. ]. R. Kulkarni

Sarkar].

February, 23

rg6o dismissed in limine merely because full particulars of a corrupt practice alleged were not set out. If an objection was taken and Shri Balwan Singh the Tribunal was of the view that full particulars had not been v. set out the petitioner had to be given an opportunity to amend Shri or amplify the particulars. It was only in the event of non- Lakshmi Narain compliance with the order to supply the particulars that the

chare which remained vague could be struck ont.

Resides, in the present case no material prejudice was caused to the appellant by the absence of the particulars of the contract of hiring.

Sarkar J.-Under s. r23(5) the hiring of the vehicle for conveyance of electors was an essential element of the corrupt practice and it was necessary to give particulars of the contract of hiring.

But the failure to give such particulars did not render the petition liable to be dismissed. Section 83 of the Act did not provide for the dismissal of the petition for failure to furnish particulars nor did s. 90(3) empower the Tribunal to dismiss a petition for non-compliance with the provisions of s. 83. The appellant was entitled to apply for particulars but he did not do so; he could not at a later stage complain about the absence_ of the particulars.

CrvIL APPELLATE JURISDICTION: Civil Appeal No. 4ll of 1959.

Appeal by special leave from the judgment and order dated 9th January 1959 of the Allahabad High Court in :First Appeal No. 448/A of 1958.

L. K. Jha, P. Rama Reddy, R. K. Garg and R. Patnaik fm the appellant.

G. S. Pathak, G. N. Dikshit, Udai Pratap Singh, J. P. Goval, M. S. Gupta and P. C. Aggarwala, fo:r respondent No. 1.

1960. February, 23. The Judgment of Sinha, C. J.

Imam, Wanchoo and Shah, JJ. was delivered by

Shah, J. Sarkar, J. delivered a separate Judgment.

Shah J.

SHAH, J.-Three candidates, Balwan Singh (hereinafter referred to as the appellant), Ram Dulari and Gaya Prasad, contested the election to the U. P.

Legislative Assembly from tho Akbarpur Rural Assem. bly Constituency No. 6, at the last general elections held in 1957. The polling of votes took place on February 28, 1957, and the result of the election was declared on March 2, 1957. The appellant secured the highest number of votes and was declared duly elected. A voter named Lakshmi Narain-who will hereinafter be referred to as the first respondent-submitted an application to the Election Commission of India to declare the election of the appellant Balwan Singh

.I .

void on the ground inter alia that the appellant" and/ r96o or his election agent and/or other persons with his Sh . B -1 - s h . . ri a wan ing consent, had committed corrupt practices and the v. result of the election was materially affected by such Shri corrupt practices committed in his interest. " In Cl. Lakshmi Narain

(f) of para 9 of the petition, which is material for this appeal, it was averred by the first respondent, that in villages set out in annexure D, the appellant, his agents and workers with the consent of the appellant, hired and procured bullock carts and tractors for conveying women electors to and from the polling station.

In Sch. D, was set out a list of 30 villages. This elec

tion petition was referred for trial to the District Judge, Kanpur, who was constituted the Election Tribunal for trying the petition. The appellant by his written statement contended that the averments made in Cl. (f) of para. 9 were untrue ; that neither he nor his agents or workers had ever hired or procured bullock carts or trucks to convey women voters from the villges set out in Annexure Dor any other village to the polling station. He also submitted that the first respondent had not disclosed the names of the voters nor the particulars of the conveyances, and that the latter could not in view of the defective pleading be permitted to challenge the election of the appellant on that charge. On July 15, 1957, the first respondent applied for leave to amplify the particulars set out in the various clauses of para. 9, including the particulars set out in Cl. (f) and prayed for leave to amplify the recitals in that clause by incorporating Ann. D-1 in the petition. In Ann. D-1, the first respondent set out the nature of the vehicles used, the names of the owners of the vehicles, the names of the villages from which women voters were conveyed at the expense of the appellant to the polling station and back, the hire paid, and the description of the families to which the women voters who were conveyed belonged. The appellant submitted in rejoinder that by his application, the first respondent in substance sought not to amplify the particulars given by him, but to make allegations about fresh corrupt practices, and prayed that several clauses including Cl. (f) of para. 9 be deleted. On July 29, 1957, the Election Tribunal

Shah ].

r96o rejected the application of the first respondent. He

Sh . B -1 - 5 . h observed that: ri a wan ing M ] h 1 t• v. " ere y saymg t at t ie corrupt prac ice was Shd followed in the villages whose list was given in Lakshmi Narain annexure 'D' does not amount to giving particulars

Shah ]. as were required to be furnished by the aforesaid Section 83 (l)(b) of the Representation of the People Act." and directed that certain paragraphs including Cl. (f) para. 9 and Annexure D be struck off.

Relying upon a judgment of the Allahabad High Court delivered on September 9, 1957, Mubarak Mazdoor v. K. K. Banerji and another (1) in which, the practice to be followed in dealing with allegations of corrupt practices, made in an election petition, on the ground of vagueness, was enunciated the first respondent applied for review of that order. The EJection Tribunal, by its order, dated September 13, 1957, accepted the plea of the first respondent for review of the order, and directed that the order dated July 29, 1957, be set aside.

The appellant applied under Art. 227 of the Constitution, to the High Court of Judicature at Allahabad, challenging the correctness and propriety of the order of the Election Tribunal reviewing its order dated July 29, 1957. By its order dated March 6, 1958, the High Court substantially confirmed the order passed by the Tribunal. The High Court observed that the Tribunal had jurisdiction to review its earlier order, and that in the circumstances of the case it was unnecessary to decide whether the order dated September 13, 1957, was properly passed, because the order dated July 29, 1957, was" unjust and improper", and the matter having been brought before it in a proceeding under Art. 227 of the Constitution, the High Court could rectify the error.by setting aside the earlier order.

Pursuant to the order passed by the High Court, the averments made in Cl. (f) of para. 9 were restored, and Ann. D-1 was incorporated in the petition.

By its order dated August 16, 1958, the Tribunal dismissed the petition holding that the first respondent failed to establish the corrupt practices on which

(1) 13 E.L.R. 310.

3 S.C.R.

SUPREME COURT l~EPORTS 95

the petition was founded.

Dealing with the corrupt z960 practice set out in Cl. (f) of para. 9, the Tribunal . - 5 . h observed that the corrupt practice described in s. 123 Shri Balwan ing

(5) of the Representation of the People Act, lies in the .; hri act of hiring or procuring vehicles by a candidate or Lakshmi Narain his agent, and that this corrupt practice is not committed merely by conveying the voters, and as the parti- Shah j. culars of hiring and procuring of the vehicles were not furnished in the petition, and the evidence adduced by the first respondent to support his case of hiring or procuring vehicles was unsatisfactory the case of the first respondent about the commission of a corrupt practice by the appellant stood unsubstantiated.

In an appeal under s. 116A of the Respresentation of the People Act, against the order of the Election Tribunal the High Court Qf Judicature at Allahabad set aside the order and declared the election of the appellant void. The High Court held that the petition was defective in that it omitted to set out the date and place of the hiring of the tractor, which was proved t<;> have been used for conveying voters to the polling station, but no prejudice was caused to the appellant as a result of that omission. In the view of the High Court the testimony of A. P. Malik, the Presiding Officer at Naholi polling station, corroborated by exh. 22, a petition submitted on the date of the polling by one Raghuraj Singh, agent of Ram Dulari, a contesting candidate, and further supported by the evidence of witness Kalika Prasad and another witness Raghuraj Singh, established that voters were conveyed in a trailer attached to a tractor, at the instance of the appellant to the Naholi polling station, and that the evidence of one Hanuman Singh established the contract of hiring the tractQr used for conveying voters to the polling station. The High Court accordingly held that the appellant had committed the corrupt practice of hiring a vehicle for conveying voters to the polling station. Against the order passed by the High Court declaring the election of the appellant void, this appeal has by special leave been filed.

Section 83{l}(b) of the Representation of the People Act, as amended provides that an election petition

I960 shall set forth full particulars of any corrupt practice

Shri Balwan Singh the petitioner alleges, including as full a statement as v. possible of the names of parties alleged to have com- Shri mitted such corrupt practice and the date and place Lakshmi Narain of the commission of each such practice. Section 123 sets out what shall be deemed to be corrupt practices Shah J. for the purposes of the Act, and by Cl. (5) thereof, as it stood at the material date, it was in so far as it is relevant, provided :

"The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person for the conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under sub-section (1) of section 29 for the poll." Neither in the petition as originally filed nor as amended, the date and place of hiring the tractor which was alleged to have been used for conveying the voters, and the names of the persons between whom the contract of hiring was settled, were set out. The question which then falls to be determined is : Whether the election petition was liable to be rejected because it did not set forth particulars of the date and place of hiring the vehicle alleged to have been used in conveying voters? In the opinion of the High Court the corrupt practice described in s. 123(5) being the hiring or procuring of a vehicle for conveying voters to the polling station, in the absence of a detailed statement as to the time and place of the hiring, the petition was defective. In so opining, the High Court relied upon an earlier decision of that Court, Madan Lal v. Syed Zargham Haider and others('). In that case, Bhargava, J., delivering the judgment of the Court, observed:

" ...... under s. 123(5) of the Representation of the People Act, a corrupt practice consists in the act of hiring or procuring certain types of vehicles by a candidate or his agent or by any other person for the conveyance of any elector to or from any polling station. A corrupt practice is, therefore, . .

If) IJ E.L.R. 4~6.

committed not by conveying the voter but by the .r96o= act of hiring or procuring the conveyance. In clause . .

(b) of section 83(1), an election petitioner is required Shri BaJwan Singh to set forth full particulars of the corrupt practice s: . including as full a statement as possible of the Lakshmi ; arain names of the parties alleged to have committed such corrupt practice and the date and place of the com- Shah J. mission of each such practice. The language used in this provision of law requires the setting forth of the full particulars of the corrupt practice and specially mentions at least three particulars which must be given. These are the names of the parties alleged to have committed the corrupt practice, the date when the corrupt practice was committed and the place of the commission of the corrupt practice." Not the contract of hiring but the fact of hiring for conveying voters to and from the polling station is declared by s. 123(5) a corrupt practice. A petition which sets forth the particulars about -the use of a vehicle . for conveying voters to and from the polling station, with details as to the time and place coupled with as full a statement as possible in support of the plea that the vehicle was hired or procured by the candidate or his agent or another person substantially complies with the requirement of s. 83(l)(b). In considering whether a corrupt praetice described in s. 123(5) is committed, conveying of electors cannot be dissociated from the hiring of a vehicle. The corrupt practice being the hiring or procuring of a vehicle for the conveyance of the electors, if full particulars of conveying by a vehicle of electors to or from any polling station are given, s. 83 is duly complied with, even if the particulars of the contract of hiring, as distinguished from the fact of hiring, are not given.

Normally, the arrangement for hiring or procuring a vehicle, is within the special knowledge of the parties to that agreement and it is difficult to assume that it was intended to require the petitioner in an election dispute to set out the particulars of facts within the special knowledge of the other party, and expose the petition to a penalty of dismissal if those particulars could not be given. If particulars in support of the

'960 plea of the vehicle being hired or procured by the

Sh . B -1 - 5 . h candidate or his agent or by another person was used ri a wan ing , . .

v. • for conveymg voters to or from the pollmg stat10n Sh1i are set out, failure to set out particulars of the con- Lakshmi Na1ain tract of hiring or arrangement of procuring will not

Shah]. render the petition defective.

By The Representation of the People Act, 1951, as amended by Act 27 of 1956, a• penalty of dismissal of a petition or the striking out of the plea of a corrupt practice merely because particulars in that behalf are not set out is not imposed. By s. 90, cl. (5) of the Act the Tribunal is authorised to allow particulars of ariy corrupt practice alleged in the petition, to be amended or amplified in such manner as 11!.ay, in its opinion, be necessary for ensuring a fair and effective trial of the petition. By s. 90( I) of the Act every election petition is, subject to the provisions of the Act and Rules made thereunder to be tried as nearly as may be in accordance with the procedure applicable under the Civil Procedure Code to the trial of suits: and for failure to furnish particulars after being so ordered but not before the Tribunal may strike out a defective plea. The practice to be followed in cases where insufficient particulars of a corrupt practice are set forth in an election petition is this.

An election petition is not liable to be dismissed in limine merely because full particulars of a corrupt practice alleged in the petition, are not set out.

Where an objection is raised by the respondent that a petition is defective because full particulars of an alleged corrupt practice are not set out, the Tribunal is bound to decide whether the objection is wellfounded. If the Tribunal upholds the objection, it should give an opportunity to the petitioner to apply for leave to amend or amplify the particulars of the corrupt practice alleged; and in the event of noncompliance with that order the Tribunal may strike out the charges which remain vague. Insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition, but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence 9f the contesting parties is led on the plea

-f raised by the petition, the petition cannot thereafter r96o be dismissed for want of particulars, because the defect,.,, . B -1 - 5 . k f d d f . . d. . f h .., ri a wan ing is one o proce ure an not one o Juris 1ct10n o t e v.

Tribunal to adjudicate upon the plea in the absence of Shri particulars. The appellate court may be justified in Lakshmi Narain setting aside the judgment of the Tribunal if it is satisfied that by reason of the absence of full parti- _. culars, material prejudice has resulted; and in considering whether material prejudice has resulted failure to raise and press the objection about the absence of particulars before going to trial must be given due weight.

Assuming that in the case before us, the petition was defective because particulars as to the persons x between whom the contract of hiring was entered into, and the date and place thereof, have not been set out, the High Court was right in holding that no material prejudice was occasioned thereby. In the written statement to the petition as originally filed, it was not expressly contended that because of the absence of particulars as to the names of the persons between whom the contract of hiring took place, and

_., the date and place of the contract; the appellant was unable to meet the charges made against him. Even after the petition was amended, no such objection was raised by the appellant. Before the Tribunal, at the hearing of the argument, a plea that the petition was defective, because of lack of particulars relating to the names of the persons who entered into the contract of hiring, and the time and place thereof was apparently raised. But all the evidence relating to the hiring. and the time and place thereof, was without objection admitted on the record. It is not even suggested that because of the absence of the particulars, the appellant was embarrassed in making his defence, or that he could not lead evidence relevant to the plea of corrupt pni.ctice set up by the first respondent. We are therefore unable to hold that any material pre-

-I judice was occasioned because of the absence of those particulars in the petition.

The order of the Tribunal rejecting the application of the first respondent for amplification of the particulars of the corrupt practice alleged in the election

Shah ].

r960 petition was, for reasons already set out, erroneous ;

Sh .B -1 - 5 . hand in that view the question whether the High Court " a wan ing d" t d "t ]f h Id" "t If b d t th h v. mis tree e 1 se m o mg 1 se oun , a e ear- Shri ing of the appeal, by its earlier judgment delivered Lakshmi Narain on the writ petition, does not fall to be determined.

Shah].

Counsel for the appellant urged that in any event, the High Court was not justified in disagreeing with the considered judgment of the Tribunal on questions purely of appreciation of evidence. But this appeal has been filed with special leave granted under Art.136 of the Constitution. It is the settled practice of this Court to grant leave to appeal under Art. 136 only if exceptional and special circumstances exist, or that substantial and grave injustice has been done and the case presents features of sufficient gravity to warrant a review of the decision appealed against. Merely because the appeal has been admitted by special leave, the entire case is not at large, and the appellant is not free to contest the findings of fact of the subordinate tribunals. Only those points on which special leave may initially be granted, can be urged at the final hearing; and normally, special leave will not be granted by this Court under Art 136(1) of the Constitution on a plea of error committed by the Courts below in the appreciation of evidence.

This would be sufficient to justify us in refusing to entertain the argument advanced by the counsel for the appellant. 'Ve may, however, observe that even on a review of the evidence, we are satisfied that the High Court was right in its conclusion. There was before t.he Tribunal the evidence of Mr. A. P. Malik, the Presiding Officer at the N aholi polling station, who testified that he had seen on the day of polling a tractor at a distance of 100 to 150 yards from the polling booth. The witness stated that he did not remember having seen any flag or poster on the tractor. The witness, however, had made a note in his diary about an application submitted to him by Raghuraj Singh. P. W. 30. A copy of that application has been produced, and it is recited in that application that a tractor had come to the polling booth and was parked near "the line of yoters"; that some persons, a majority of whom were women, were sitting on the

tractor; that a red flag was hoisted and posters of the r960 socialist party were pasted on the tractor; and that - some men and women, who came on the tractor, were Shri Balwan Singh placed in the queue of voters. There was also the s~; ri evidence of Raghuraj Singh, P.W. 38, a voter in the Lakshmi Narain constituency. He stated that he had seen the tractor belonging to Chandra Bahadur Pandey of village Shah ].

Chapargatha, near :the polling station; that a red flag was hoisted and posters were pasted over the tractor with the symbol of a banyan tree which was the emblem of the party of the appellant. He further stated that one Kalika Prasad and some female members of his family had come on the trailer and Radhey Shyam, an agent of the appellant, had taken all these voters and had given them slips of paper. Kalika Prasad was also examined and he stated that he and his wife and several other villagers had gone to the N aholi polling station to exercise their franchise on the trailer attached to the tractor; that a red flag was hoisted and posters were pasted on the trailer; and that there was on the posters the legend that votes be cast in favour of the appellant. lt is established by unimpeachable evidence that a tractor was brought to N aholi Polling Station on the date of the polling. The Tribunal accepted the evidence of Mr. Malik, but rejected the testimony of other witnesses on somewhat fanciful theories. The Tribunal observed that at the material time no tractor was brought near the polling booth, and if one was brought, the owner of the tractor may possibly have given a free lift to the voters to the polling station and back. The Tribunal also suggested that the tractor may have been brought without the consent of the appellant or his agents. But the fact that a tractor was brought to the polling station, is clearly established by the evidence of Mr. Malik. That on the tractor was carried a red flag of the party of the appellant, is established by the evidence of th, e two witnesses, Raghuraj Singh, P.W. 30 and Raghuraj Singh P.W. 38, and also by the evidence of Kalika Prasad. It is also established on the evidence that on the tractor, were displayed posters bearing the symbol of a banyan tree, which was the election emblem of the party of the _appellant at the election. There was no

z960 sufficient reason for disc11rding this testimony. Witness . - .

Hanuman Singh P. w. 56 deposed that he was present Shn Balwan Singh t h f th t j f th b f. h · a t e t.1me o e se t ement o e argam o irmg

;~,; the tractor belonging to Chandra Bahadur for convey- Lakshmi Narain ing voters. The High Court accepted that evidence and we do not think, judged in the context of the other evidence that the High Court was in error in so doing.

The appeal, therefore, fails and is dismissed with costs.

Sarkar J.

SARKAR, J.-I agree that this appeal fails.

The appellant had been declared elected at an election. The first respondent filed an election petition under the Representation of the People Act, 1951 to to have the appellant's election declared void. Among other things it was said that the appellant had committed a corrupt practice which was described in the petition substantially in these words : In villages mentioned in annexure D the appellant hired a tractor for conveying women electors from their houses to places of polling and back.

The appellant applied to have this allegation struck out as it did not contain sufficient particulars of the corrupt practice alleged. The respondent in his turn sought permission to give particulars of this corrupt practice by amending his petition by the substitution of a new annexure to his petition marked Dl in the place of the existing annexure D. The Election Tribunal first made an order refusing the amendment and striking out the allegation as desired by the appellant. Later it made another order reviewing its earlier order and thereby cancelled that order. By this order it directed the restoration of the allegation struck out and the substitution of .annexure D by annexure D 1.

The appellant moved the High Court at Allahabad under arts. 226 and 227 of the Constitution against the latter order of the Tribunal. The High Court held that the Tribunal had the power to review any order made by it and that the order made on review allowing the amendment was correct. It also held that if the Tribunal had no power of review, the High Court

being itself seized of the matter, would be deemed to r960 have set aside the first order of the Tribunal and d d 11 . th d t Th l Shri Balwan Singh ma e an or er a owmg e amen men . . e appe - lant did not appeal from this order of the High Court. s~i The parties then went to trial before the Tribunal. Lakshmi Narain The appellant led his evidence without any objection as to the petition being defective for want of any Sarkar J. particulars. The Tribunal took the view that the corrupt practice alleged had not been proved and dismissed the petition. On appeal the High Court held that the corrupt. practice had been proved and set aside the election of the appellant. Hence this appeal. It is said that the election petition should have been dismissed because sufficient particulars of the corrupt practice alleged had not been given in the petition. The corrupt practice alleged is of the kind mentioned in s. 123 (5) of the Act which is in these words: The hiring or procuripg, whether on payment or otherwise, of any vehicle or vessel by a candidate .............. : ......... for the conveyance of any elector ............... to or from any polling station.

It is contended that the hiring of the vehicle is an essential element of the corrupt practice mentioned in this section. I am leaving out of.consideration the procuring of a vehicle because that is not the case here. It is said that the petition must, therefore, state the particulars of the date and place of the contract of hiring and the parties to it. Reference is made to s. 83 of the Act where it is provided that, "An election petition ............ shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such corrupt practice." The question thus arises whether the particulars of the parties to the contract of hiring and the date when, and the place where, it had been made should have been given.

The respondent does not deny that the particulars of the contract of hiring had not been stated in the

z960 petition. According to him the corrupt practice

Sh .. 1- 5 . h mentioned in s. 123 (5) is not committed by the " Ba wan ing f h" . b b h contract o irmg ut y t e conveyance of the

5v/,,; electors in a hired vehicle.

Hence, he says that no Lakshmi Narain question as to these particulars arises.

In my view the appellant's contention is well- Sarkar J. founded.

Under the section the hiring of the vehicle for the conveyance of electors is the corrupt practice.

It is of the essence of this corrupt practice that the vehicle must have been hired, that is to say, a contract for the hiring of the vehicle must have been made. I am unable to imagine how a vehicle can be hired without a contract. Therefore it seems to me that particulars of that contract should be given.

I am also unable to appreciate the respondent's contention. It seems to me that to say that the corrupt practice is committed by the conveyance of electors in a hired vehicle is the same thing as saying that electors had been conveyed by a vehicle which had been hired, that is, a vehicle in respect of which a contract of hiring had been made. Simple conveyance of electors in a vehicle is not enough.

The vehicle must be a hired vehicle. Hence there is no corrupt practice unless the hiring of the vehicle, that is, the contract of hire in respect of it is established.

Whether a simple contract of the hiring of a vehicle for the conveyance of electors without actual conveyance of them would amount to a corrupt practice or not, is a question that does not arise in this case. But it seems to me that whatever view is taken of that question, that would not make the contract of hiring any the less an essential clement of the corrupt practice described in s. 123(5).

In my view therefore the appellant was entitled to the particulars the want of which he now complains.

The question then is what is the effect of the failure to supply these particulars ? I am unable to agree that the petition was thereupon liable to be dismissed.

It has not been shown to us that the Act provides for such dismissal. Section 83 does not say that on failure to furnish the prescribed particulars the petition shall be dismissed. On the other hand, s .. 90(3) of the Act provides that, "The Tribunal bhall

...

3 S.C.R. SUPREME COURT REPORTS 105 -f dismiss an election petition which does not comply z960 with the provisions of section 81, section 82 or sec- . - . tion 117." This section does not include s. 83. It Shri Balwan Singh v. • therefore seems to me that the appellant was not Shri entitled to a dismissal of the petition for want of the Lakshmi Narain particulars.

The appellant was certainly entitled to apply for the particulars. I conceive he would have such a right 1lnder s. 83 and also s. 90(1) of the Act which made the provision_s of the Code of Civil Procedure applicable to a trial before an Election Tribunal, in the view that I have taken, that the contract of hiring is an essential element of the corrupt practice mentioned in s. 123(5) of the Act. The appellant ' however made no such application. Instead he went to trial and led evidence without making any grievance that he was hampered in his defence for want of the particulars. He cannot at a later stage complain about the absence of the particulars. It is unnecessary to consider what would have happened if upon the appellant's application the respondent had been directed to furnish the. particulars and had

.._ failed to do so, for no such order had been made.

It only remains for me to say that it is not open for the appellant to contend now that the Tribunal was wrong in reviewing its order. The High Court rejected that contention in the order made on the application under arts. 226 and 227 of the Constitution. For greater safety it also made an order allowing the amendment sought by the respondent.

The High Court's decision not having been questioned by the appellant by an appeal, is binding on him.

He must therefore accept the position that the amendment of the petition was proper. I may also state that if the amendment had not been properly allowed that would not have made any difference.

The only result would have been that some more particulars of the corrupt practice alleged would have been wanting. For the reasons earlier stated this would not have entailed a dismissal of the election petition.

Sarkar].

z960 The only other point that was argued at the bar . - . was a question of fact, namely, whether the corrupt Shri Bal wan Singh practice alleged had been proved. On that point

;;.,; I am in perfect agreement with the view expressed Lakshmi Narain by my learned brothers and have nothing to add.

Sarkar ].

z960

February, 24

Appeal dismissed.

THE STATE OF VINDHYA PRADESH

(NOW MADHYA PRADESH)

MORADHWAJ SINGH AND OTHERS

(B. P. SINHA, c. J., JAFER IMAM, A. K. SARKAR, K. N. WANCHOO AND J. c. SHAH, JJ.)

] agirs, Abolition of-Constitutional validity of enactment- V indhya Pradesh Abolition of J agirs and Land Reforms Act, I952

(XI of I952), ss. 22(r), 37, Schedule cl. (4)(e)-Code of Civil Procedure (Act V of I908), s. 9-Constitution of India, Art. JI A. ;.

These appeals raised the question of constitutional validity of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (XI of 1952). Applications were made before the Judicial Commissioner under Art. 226 of the Constitution on the ground that various provisions of the Act placed unreasonable restrictions on the exercise of the fundamental rights guaranteed by the Constitution. The Judicial Commissioner held that the Act, excepting s. 22(1), s. 37 and cl. (4)(e) of the Schedule to the Act, was constitutionally valid. The State appealed against that part of the order which declared the three provisions unconstitutional and one of the petitioners appealed against the order declaring the rest of the Act constitutional.

Held, that the appeal OD the State must be allowed and that of the petitioner dismissed.

It was not correct to say that s. 22 of the Act, which lays down the scheme for giving effect to s. 7(a) of the Act which permits the Jagirdars to remain in possession of certain lands even after the abolition of their jagirs, is a piece of colourable legislation and, therefore, ultra vires the Legislature. That section cannot be said to discriminate as between jagirdars on the one hand and other occupants of land, to whom s. 28(1) applies, on the other, since they belong to distinct and different classes.

District Judge of Poona

s. 6

BALWAN SINGH

LAKSHMI NARAIN & OTHERS

B. P. SINHA

JAFER IMAM

A. K. SARKAR

K. N. WANCHOO

0. SHAH, JJ

Representation of the People Act

ss. 83(z)(b), 90(3)

s. 123(5)

Representation of the People Act, 1951

Sinha

Jafer Imam

K. N. Wanchoo

J.C. Shah

s. 123(5)

Balwan Singh

Lakshmi Narain

Sarkar

Section 83

s. 90(3)

s. 83

Allahabad High Court

L. K. Jha

P. Rama Reddy

R. K. Garg

R. Patnaik

G. S. Pathak

G. N. Dikshit

Udai Pratap Singh

J. P. Goval

M. S. Gupta

P. C. Aggarwala

Imam

Wanchoo

Shah

J. Sarkar

J.

SHAH

Balwan Singh

Ram Dulari

Gaya Prasad

U. P.

February 28, 1957

March 2, 1957

Election Commission of India

District Judge, Kanpur

July 15, 1957

July 29, 1957

Election Tribunal

Shah ].

r96o

Section 83

Representation of the People Act

September 9, 1957

EJection Tribunal

September 13, 1957

Art. 227

High Court of Judicature at Allahabad

Art. 227

s. 123

Balwan

Representation of the People Act

s. 116A

High Court Qf Judicature at Allahabad

A. P. Malik

Naholi

Raghuraj Singh

Kalika Prasad

Hanuman Singh

Section 83

Representation of the People Act

Section 123

section 25

section 29

s. 123(5)

Bhargava

s. 123(5)

Representation of the People Act

section 83(1)

BaJwan Singh

s. 123(5)

s. 83(l)(b)

s. 123(5)

s. 83

s. 90

s. 90( I)

Art. 136

Art 136(1)

A. P. Malik

N aholi polling station

Lakshmi Narain

Chandra Bahadur Pandey

Shah

Kalika Prasad

Radhey Shyam

Malik

Balwan Singh

Chandra Bahadur

SARKAR

High Court at Allahabad

arts. 226 and 227

s. 123

s. 83

s. 123

s. 123(5)

Section 83

section 81

section 82

s. 83

s. 83

s. 90(1)

the Code of Civil Procedure

s. 123(5)

arts. 226 and 227

Bal wan Singh

STATE OF VINDHYA PRADESH

MORADHWAJ SINGH

J. c. SHAH

ss. 22(r), 37

Code of Civil Procedure

s. 9

Constitution of India

Art. 226

s. 22(1)

s. 37

s. 22

s. 7(a)

s. 28(1)


---'\

3 S.C.R.

SUPREME COURT REPORTS 953

fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners' rights in any lands held by them.

We would, therefore, dismiss that petition with costs except the costs of the hearing before us for all the three petitions were heard together.

Lastly, we come to Petition No. 41 of 1956. This petition must clearly be dismissed. It was filed by the son of the petitioner in Petition No. 443 of 1955 claiming to be entitled to the sthanam lands situate in an area which was formerly Pi1'rt of the Cochin State. It is not in dispute that the impugned Act was never extended to that area. Therefore, whether the gift to him was valid or not, as to which we say nothing, the petitioner in this petition is not affected by that Act at all. His petition is clearly misconceived. His petition is, therefore, dismissed and he will pay the costs excepting the costs of the hearing.

ORDER OF COURT.

In view of the judgment of the majority, Petition No. 443 of 1955, is allowed with costs, Petition No. 40 of 1956, is allowed without costs, and Petition No. 41 of 1956, is dismissed without costs.

THE COMMISSIONER OF INCOME TAX,

BOMBAY

THE ELPHINSTONE SPINNING AND

WEAVING MILLS LTD. (S. K. DAS, J. L. KAPUR and M. HIDAYATULLAH, JJ.) Income-tax-Assessee incurring loss but paying dividends- Additional income-tax, liability to pay-Construction of taxing statute-Income-tax Act, I922 (XI of I922), s. 3-Finance Act, I9SI (23 of I9SI), First Schedule, Paragraph B.

The assessee had made profits during the assessment year 1951-52 but after deduction of the depreciation allowance it was found to have incurred a loss for income-tax purposes. In the same year the assessee declared dividends. The Income-tax Officer treated this amount as ' excess dividend ' and levied additional income-tax as provided in paragraph B of Part I of the First Schedule to the Indian Finance Act, 195L The assessee contended that inasmuch as there was no income at all which wa~

19~0

K avalappata Kottarathil Kochuni v.

State of Madras

Sarkar }.

May 4,

SUPREME COURT REPORTS [l9fjUj

Iy6o taxable the words "on the total income" in pa.ragraph B did not apply to it and no additional income-tax could be levied. co1nniissironer of fhe appellant, relying on the proviso to paragraph B, contended

Jncorne Ta~. that additional income-tax was imposed on excess dividend and Bombay if excess dividend was paid out, the liability to tax arose: v.

Held, that the assessee was notliable to pay additional income- Etphinstone tax. The liability to tax was imposed by s. 3 of, the Income-tax 'P'""'i!J¥/'"i d Act and the Finance Act merely laid down the rates at which tax Weaving tl s 1 was to be levied on the total income. If there was no income there was no question of applying a rate to the "total income" and no income-tax or super-tax could possibly result.

The word "additional" in the expression "additional income-tax" implied that there was a tax before. The expressions "charge on the total income " and "profits liable to tax " in paragraph B contemplated only those cases where there was income and not cases where there was loss.

Consequently the expression "dividends payable out of such profits" could only apply when there were profits and not.when there were no profits. The imposition of additional income-tax was conditioned by the existence.of income and profits. The legislature used language appropriate to income and applied the rate to the "total income". Where there was no total income the law could not apply and the courts could not be asked to supply the omission made by the legislature or to delete or to modify any words. If the words of a taxing statute failed then so did the tax. The courts could not, except rarely and in clear cases, help the draftsman by a favourable construction.

Curtis v. Stovin, (r889) 22 Q.B. 5r3, Commissioner of Incometax v. Teja Singh, [r959] 35 I.T.R. 408 S.C., Whitney v. Commissioners of Inland Revenue, (r925) IO T.C. 88, special Commissioners of Income Tax v. Linsleys, Ltd., (r958) 37 T.C. 677 and Commissioners of Inland Revenue v. South Georgia Co. Ltd. (r958) 37 T.C. 725, distinguished.

The Cape Brandy Syndicate v. The Commissioners of Inland Revenue, (r920) r2 T.C. 358 and Wolfson v. Commissioners of Inland Revenue, (r949) 3r T.C. r4r, referred to.

The proviso to paragraph B prescribed varying rates for varying circumstances; it dealt with rates alone and not with the chargeability to tax. There were no words in this proviso making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 427 of 1957.

Appeal from the judgment and order dated September 9, 1955, of the Bombay High Court in Income-tax Reference No. 31/X of 1954.

K. N. Rajagopal Sastri and D. Gupta, for the appellant.

N. A. Palkhivala, S. N. Andley and J. B. Dadachanji, for the respondents and intervener.

r--·

--'1

~ S.C.R. SUPREME COURT REPOR1'S 955

1960. May 4. The Judgment of the Court was

I960

delivered by Commissioner of HIDAYATULLAH, , J.-The High Court of Bombay in Income Tax, n. reference under s. 66( 1) of the Indian Income-tax Bombay Act by the Income-tax Appellate Tribunal, Bombay, Elphv. 1 was referred the following two questions for decision: spin~7~;'; f.

(1) Whether the assessee Company was liable to pay Weaving Mills Ltd. additional income-tax ? and - H idayatullah J.

(2) If the answer to question No. 1 is in the affirmative, whether the levy of the additional income.tax is ultra vire8 ?

The High Court answered the first question in the negative and in the circumstances, left the second question unanswered. This appeal is against the judgment and order of the High Court on a certificate granted by it. The Commissioner of Income-tax is the appellant, and the Elphinstone Spinning and Weaving Mills Co. Ltd., Bombay (the assessee Company) is the respondent.

The facts may now be stated briefly. For the assessment year 1951-52 (the previous year .being the calendar year 1950), the tss.essee Company was found to have incurred a loss of Rs. 2,19,848 and was thus adjudged to be not liable to income-tax. In that year, the assessee Company had made profits, but the depreciation allowance under the Income-tax Act came to Rs. 7,84,063, thus converting the profit into loss for income-tax purposes. In the same year, the assessee Company declared dividends a.mounting to Rs. 3,29,062. The Income-tax Officer treated this amount as •excess dividend' and levied additional income-tax as provided in Paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951.

This additional income-tax was computed to be Rs. 41,132-12-0. The contention of the assessee Company that it was not liable to pay additional incometax was not accepted by the Tribunal, but the High Court, on an examination of the relevant provisions and the scheme of the Indian Income-tax Act and the Finance Act, 1951, held that it was sound.

Hence this appeal by the Commissioner of Income-tax.

We are concerned with the Finance Act, 1951, and Paragraph B of the First Schedule reads :

Commissioner of Income Tax,

Bombay

Elphinston8 Spinning &

Waving 1W-1lls Ltd.

Hidayatullah .f,

"B. In the case of every company-

On the whole of total income

Rate Surcharge Four annas one-twentieth in the of the rate rupee specified in the preceding column: Provided that in the case of a company which, in respect of its profits liable to tax under t'he Income-tax Act for the year ending on the 31st day of March, 1952, has made the prescribed arrangements for the declaration and payment within the territory of India excluding the State of J ammu and Kashmir, of the dividends payable out of such profits, and has deducted super-tax from the dividends in accordance with the provisions of subsection (3D) or (3E) of section 18 of the Act--

(i) Where the total income, as reduced by seven annas in the rupee and by the amount, if any, exempt from income-tax, exceeds the amount of any dividends (including dividends payable at a fixed rate) declared in respect of the whole or part of the previous year for the assessment for the year ending on the 31st day of March, 1952, and no order has been made under sub-section (1) of section 23A of the Income-tax Act, a rebate shall be allowed at the rate of one anna per rupee on the amount of such excess;

(ii) Where the amount of dividends referred to in clause (i) above exceeds the total mcome as reduced by seven annas in the rupee and by the amonnt, if any, exempt from income-tax, there shall be charged on the total income an rtdditional income-tax equal to the sum, if any, by which the aggregate amount of income-tax actually borne by such excess (hereina.fter referred to as' the excess dividend') falls short of the amount calculated at the rate of five annas per rupee on the excess dividend.

For the purposes of the above proviso, the expression 'dividend' shall have the meaning assigned to it in clause ·(6A) of section 2 of the Income-tax Act, but any distribution included in that expression,

made during the year ending on the 31st day of 1 960 March, 1952, shall be deemed to be a dividend Commissioner of declared in respect of the whole or part of the Income Ta,., previous year. fl, mbay For the purposes of clause (ii) of the above v.

Elphinstone proviso, the aggregate amount of income-tax actually spinning a;. borne by the excess dividend shall be determined as We •ving Mills Ltd. follows:- H idayatullah J. (i} the excess dividend shall be deemed to be out of the whole or such portion of the undistributed profits of one or more years immediately preceding the previous year as would be just sufficient to cover the amount of the excess dividend and as have not likewise been taken into account to cover an excess dividend of a preceding year;

(ii) such portion of the excess dividend as is deemed to be out of the undistributed profits of each of the said years shall be deemed to have borne tax,- ( a) if an order has been made under sub-section (1) of section 23A of the Income-tax Act, in respect of the undistributed profits of that year, at the rate of five annas in the rupee, and

(b) in respect of any other year, at the rate applicable to the total income of the company for that year reduced by the rate at which rebatP, if any, was allowed on the undistributed profits." The contention of the assessee Company was that inasmuch as there was no income at all which was taxable, the words "on the total income" did not apply to it and no additional income-tax could be charged.

The Tribunal interpreted the Paragraph to cover even a case where there was a loss holding that ' even a loss may be a total income', because if total income had to be computed in the manner laid down in the Indian Income-tax Act, the total income might be a negative figure. The Tribunal also held that inasmuch as excess dividends were to be deemed to have come out of the undistributed profits of the preceding year or years and such undistributed profits were available, the assessee Company was liable. The High Court dicl not accept these rea'lom, and reluctantly held, for reasons which may not be detailed at the present

lf

196o moment., that the assessee Company did not come within the letter of the law, however much the inten- Comw.issinner of • b d 1 Tneome Tax, tion might have een to impose an a ditionn.

Rmbay income-tax under such circumstances.

The Commisv. sioner now contends that the High Court ought to

fff;~7~~'J:, have read the Paragraph B as modified by the inte11- W"ving Mills Ltd. tion or to have treated it as an independent charging section.

Hid•yatullah .f.

The liability to tax is imposed not by the Finance Act but by the Indian Income-tax Act.

Section 3 of the latter Act is the charging section, and it provides that the tax shonld be collected at such rate or rates on the total income as laid down in any Central Act.

The Finance Act is an annual Act prescribing the rate or rates.

We are concerned with the Finance Act, 1951.

Section 2 of .the ]'inance Act prescribes the rates of income-tax by its Firs!• Schedule, and by the seventh sub.section of that section provides:

"For the purposes of this section and of the rates of tax imposC'd thereby, the expression 'total income' means total income as determined for the purposes of income-tax or super-tax, as the case may be, in accordance with the provisions of the Income-tax Act-.." It is thus clear from this that if there is no income, there is no question of applying a rate to the 'total income' and no income-tax or super-tax can possibly result. The Commissioner, however, relies upon the proviso to Paragraph B of the ]'irst Schedule, and says that the tax is imposed on excess dividend and if excess dividend is paid out, the liability to tax must arise.

The proviso was framed to discourage the paying of large dividends quite disproportionate to the income. For this purpose, a ceiling was laid down.

That ceiling was nine annas in the rupee of the total income reduced by any portion of that income which was exempt from income-tax. If only nine annas in the rupee from the income were .paid as dividend, there were no consequences in law. If, however, the dividends paid amounted to less, a rebate of one anna in the rupee in the tax was given. This was provided by the first part of the proviso. There was,

_ _,;

however, a provision for enhanced tax in the second x96o part, which worked the other way round.

Where the dividend distributed exceeded the total income as co;:r;;,;::; 0 ;~,:. 01 reduced by seven annas in the rupee, there was Eom.iaii ch:uged on the total income an additional income-tax v, 1 h 'f b h" Eiphinstone equa to t e sum, 1 any, y w ich the aggregate spinning o;, amount of income-tax actually borne by such excess Weaving Mills Ltd. (hereinafter referred to as the "excess dividend") falls short of the amount calculated at the rate of five Hidayatullak J. annas per rupee on the exr:ess dividend. In simpler language, there was a rebat J of one anna on anything saved from 9/16th of the total income, and there was an extra payment of one anna on the amount paid in excess of it. The income-tax, in either event, was payable on the total income and the additional income .. tax on the excess dividends.

Now, the difficulty arises in applying this proviso.

Where there is a total income and there is a payment of dividend either more or less than the limit fixed, one can easily find the figures by which the total income as reduced exceeds or falls short of the dividends and the additional tax that has to be paid.

But when the total income is a negative figure and no tax on the total income is levied, the words of the second part of the Paragraph 'total income ', 'profits liable to tax', 'dividends payable out of such profits ' and 'an additional income-tax', cease to have the meaning they were intended to convey. The Commissioner contends that some of these words may be ignored as being surplusage or a drafting error, and refers to rulings in which such a course was adopted.

The first case he relies on is Curtis v. Stovin (1). In that case, the words of the statute were :

"It shall be lawful for either party to the action ... to apply to a judge of the High Court ... to order such action to be tried in any court in which the action might have been commenced, or in any court convenient thereto ... " The word " court" was defined as " county court " in that statute. Lord Es her, M.R., held that the words should be extended to mean "in any county court in which, if it had been a county court action, the action

(1) \1889) 22 QB. 513.

1960 might have commenced". The ambiguity which would have otherwise arisen was removed by taking aid from Comniissio11er of l I Income Tax, the a ternative c ause "or in any court. convenient Bombay there-to" which referred to locality, and it was said that v. the first clause meant a county court in the district of.

fff;!~~~n;,, whch the parties resided, or in which one of them Weaving Mills Ltd. resided. In that case, however, there were determinative words helping construction. It is to he Hidayatullah J. noticed that Lord Esher, M. B., also warned a.gainst doing by construction what only a legislature could do by enactment, in the following words:

"It is, no doubt, very easy for a judge to say that he is introducing words into an Act only by way of construing it, while he is really making a new Act." The words "if it had been a county court action " which were read as implicit in the section were necessary to give a sensible meaning consistent with the intention expressed by other clear words.

The above case was applied and followed in Commissioner of Income-tax v. Teja Singh('), which is next relied upon. In that case, the construction, if literally made, was apt to make one section nugatory. This Court laid down that "a construction which leads to such a result must, if that is possible, be avoided ". It, however, quoted also the observations of Lord Dunedin in Whitney v. Commissioners of Inland Revenue (') that:

~ A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable." The next case relied upon is Special Commissioners of Income-tax v. Linsleys Ltd. (3). It dealt with an obvious drafting error. Section 68(2) of the English FinanceAct, 1952, contained a reference to Paragraph (a) of the proviso to sub.s. (2) of s. 262 of the lncometax Act, 1952, and the section went on to say of that Paragraph parenthetically "which relates to the deductions allowable in computing the actual income from all sources of an investment company in relation to which a direction is in force under sub-section 1 of

(t) [t959l 35 I.T.R, ~08 S, C,

(2) (r925) 10 T.C. 88, no. (>) (ro58) 37 T. C. 677,

',-

that section".

As a summary of Paragraph (a), it was entirely wrong and mi;; leading.

Since the Paragraph was there for every one to read, the draftsman's summary of it in the brackets was not accepted.

Lord Reid observed :

Commissioner of Income Tax,

Bombay v.

Elphinstone " The difficulLy does not arise from the enacting Spinning & wordi3 but from the words in brackets which purport Weaving Mills Ltd. to describe the proviso to Section 262(2) of the -- H idayatullah J.

Income Tax Act, 1952. Those words could well be held to support the view of the Court of Appeal, but they seem to me to be a misdescription of the proviso to Section 262(2).

This is one of the places where I think that obscurity bas resulted from a failure of the draftsman to anticipate a case like the present-as I have said, a very natural failure.

In fact the proviso merely deals with the deductions to be allowed in computing actual income. But the words in brackets in Section 88(2) refer to deductions in computing actual income of a company 'in relation to which a direction is in force' under Section 262(1). It would seem that these words have crept in because the draftsman assumed that a direction would always be given automatically in the case of an investment company and did not realise that a computation must first be made to determine whether the company has in fact any actual income. Whether that be the true explanation or not, I cannot regard the presence of these words in brackets, which are mere description, as of much weight in comparison with the other considerations to which I have referred." If the section was there, its meaning could be taken from the words used there and not from a description of what it enacted, put parenthetically in another statute. The case cited is hardly in point.

The last case cited is Commissioners of Inland Revenue v. South Georgia Co. Ltd. (1 ).

The words of a proviso there construed, ran as follows:

"Provided that where the said gross relevant distributions exceed the profits computed without ahatement and including franked investment income,

'960 the net relevant distributions shall be ... "

(S. 34(2)

CommiS<ionu of of the English Finance Act, 1947).

Income r "' The word "including " gave some difficulty. In the IJombay Court of Session, the word was equated to "adding "

Elph; stone correcting, as it was felt, a dafting inaccuracy. In the spinning & House of Lords, however, thrn change was not accepted Weauing M.tls Ltd. and a meaning was found.

Hidayatllah J.

The learned counsel for the respondent, on the other hand, relies upon the observations of Rowlatt, J., in The Gape Brandy Syndicate v. The Commissioners of Inland Revenue(') to the effect that in a taxing measure one can only look at the language since there is no room for an intendment. He also refers to the speech of Lord Simonds in Wolfson v. Commissioners of Inland Revenue ('), where the following passage occurs at p. 169:

"It was urged that the constrnction that I favour leaves an easy loophole through which the evasive taxpayer may find escape. That may be so; but I will repeat what has been said before. It is not the function of a court of law to give to words a strained and unnatural meaning because only thus will a taxing section apply to a transaction which, had the Legislature thought of it, would have been covered by appropriate words. It is the duty of the Court to give to the words' of this Sub-section their reas.onable meaning and I must decline on any ground of policy to give to them a meaning which, with all respect to the dissentient Lord Justice, I regard as little short of extravagant. It cannot even be urged that unless this meaning is given to the Section it can have no operation. On the con. trary, given its natural meaning it will bring within the area of taxation a number of cases in which by a familiar device tax had formerly heen avoided:" The learned counsel contends that the artificial construction should not be resorted to in this case.

There is no doubt that if the words of a taxing statute fail, then so must the tax. The Courts cannot, except rarely and in clear cases, help the draftsman by a favourable construction. Here, the difficulty is

not one of inaccurate language only. It is really this

(11 (1920) 12 T.C. 358, 366.

(2) (1910) 31T.C.141, 169.

I -

... -

that a very large number of taxpayers are within the r 96o words but, some of them are not.

Whether the enactment might fail in the former case on some other Commi<sioner 01 Income Tax, ground (as has happened in another case decided Bombay to-day) is not a matter we are dealing with at the v. moment. His sufficient to say here that the words Elrhi~<tone d t k . h d'fi : h' J h l d Spznmnf(& o no ta e m t . e mo 1 cations w 1c 1 t e earne Weaving Mills Ltd. counsel for the appellant suggests. The word 'additional ' in the expression ' additional income-tax' Hidayatullah J. must refer to a state of affairs in which there has been a tax before. The words 'charge on the total inoome' are not appropriate to describe a case in which there is no income or there is loss.

The same is the case with the cxprPssion 'profits liable to tax'. The last expression 'dividends payable out of such profits' can only apply when there are profits and not when there are no profits.

It is clear that the legislature had in mind the case of personA paying dividends beyond a reasonable portion of their income.

A rebate was intended to be given to those who kept within the limit and a.n enhanced rate was to be imposed on those who exceeded it.

The law was calculated to reach those pernons who did the latter even if they resorted to the device of keeping profits back in one year to earn rebate to pay out the sa.me profits in the next. For this pmpose, the profits of the earlier years were deemed to be profits of the succeeding years. So far so good.

But the legislature failed to fit in the law in the scheme of the Indian Income-tax Act under which and to effectuate which the Finance Act is passed.

The legislature used language appropriate to income, and applied the rate to the' total income'. Obviously, therefore, the law must fail in those cases where there is no total income at all, and the Courts cannot be invited to supply the omission made by the legislature.

It is quite possible that the legislature did not contemplate the imposition of tax in circumstances such as these, and we are not prepared to read the proviso without the words ' on the total income ' or after

modiying -this and other expressions. The High Court has given adequate reasons to show that these words are quite inappropriate, where the total i.ncome; if it

oo can be described as income at all, is a loss. The imposition of the additional income-tax is conditioned CfJmmi.>inneY of

tncnme Ta•. by the existence of income and profits, to the totalof Rombay which income the rate is made applicable. Unless some

Elhh;~,10n, other amount., not strictly income, is by law deemed spinnin< & to be income. (see fo, r example, McGregor & Balfour Weavin< Mill.< Lid. Ltd. v. Commissioner of Income.tax (1) ), we cannot im1Jrove the existing law by deeming it to be so by Hidayatullah .f, our interpretation.

The Commissioner next contends that the proviso speaks of excess dividends, which means that dividends in excess of the permissible limits have been paid. He says that where the income is nil or a negative figure, whatever is paid is excess dividend, and indeed, the Tribunal also felt that the excess dividends in this case were more because of the loss sustained. This argument has a familiar ring, It is really that "you can have more than nothing".

Reference was made in this connection to Commissioners of Inland Revenue v. South Georgia Co. Ltd.(') where Lord Simonds observed at p. 736:

"Upon this proviso, interpreted in the light of Paragi:aph 7 of the Schedule as amended, the Crown makes a very simple case: upon the undisputed figures the gross relevant distributions were £ 181,000, and the profit, s including franked investment income were nil (I may interpolate that the reference to abatement may throughout be disregarded) : therefore the net relevant distribution must be the excess of £ 181,000 over nil, i.e., £ 181,000: nothing has to be brought in under (a) of the proviso, for there were no profits." Jteliance was also placed upon the observations at p. 737 (ibid) where it was observed :

"The learned Dean of Faculty on behalf of the Respondents urged, in support of the construction that he invited your Lordships to adopt, that it was really meaningless to speak of a nil profit or of adding something to it, and this plea found favour with the Lord President. As I understood it, this was only relevant if the view was accepted that there were two separate operations and not a single

(t) [tq50] 36 !.T.R. 65 S.C.

(2) (1958] 37 T.C. 725

J -

computation. In the view which I take, therefore, 196? it does not arise, but I think it right to say that I see no impropriety of language in speaking of a Commissioner of Incmne Tax, nil profit where the question is whether any or what Bombay profit has been made. And the answer would be v.

Elphinstone equally valid in the case of an exact balance or spinning o;. of a loss." Weaving Milts Ltd.

These passages were used in the other case decided Hidayatullah J. today, in which there were no profits of the previous yea.rs.

There is, however, this difficulty that there the tax was laid on the net relevant distribution, and it was conceded that no charge could be imposrd if the proviso was inapplicable (see p. 736).

The provisions of Paragraph 7 of the Schedule as amended by s. 32 of the English Finance Act, 1947, were entirely different, and the proviso to s. 34(2) of the English Act was held applicable. The scheme of the provisions we are interpreting is entirely different. Reliance was also placed upon Rajputana Agencies Ltd. v. Commissioner of Income-tax (1), but we find nothing there to support the appellant's case.

Similarly, in ~JYl cGregor and Balfour Ltd. v. Oommis8ioner of Income-tax (2), the words were held to be apt 'to impose a charge'. It is obvious enough that unless they were so or unless the Act covered the instant cases, the tax must fail.

The gist of the matter is not the possibility of an arithmetical calculation as in the English case.

The rate in the proviso is applicable to the 'total income ' though after the application of a simple arithmetical calculation.

The ' total income', however, is still the total income as determined for the purpose of incometax, and in the case of businesses, the rules require that the total income shall not include the depreciation allowance. By the application of those rules if the total income ceases to exist, the second paragraph of the proviso, as it is worded, ceases to be workable.

All the four expressions to which we have referred earlier cease to have natural meaning, and the Commissioner is again driven to contend that we must delete the offending words or suitably modify them.

This we are not prepared to do, because the intention might well have been not to comprehend such cases.

{l) [1959] 35 I.T.R. lE8.

(2) [1959] 36 I.T.R. 65 S.C.

z96o The Commissioner next contends that we may treat

Commissioner of this as an independent charging section and give effect Income Tax, to it. The proviso is to Paragraph B in the First

Bo~~''Y Schedule of the Finance Act, and the Schedule only Elphinstone imposes a rate of tax and this rate, either by itself or

W Spi••ning & with rebate or with additional tax at a higher rate, eavrng M, lls Ltd. h b l' d h ) Th __ as to e a pp ie to t e to ta mcome. e extra tax Hidayatulloh J. under the second part of the proviso, though called an additional tax, is only the difference between the tax charged at one rate and the ta.x subsequently chargeable at another rate. The function of the proviso is thus to prescribe varying rates for varying circumstances, and it deals with rate or rates, first and last, and not with chargeability to tax, which is the subjectmatter of s. 3 of the Income-tax Act. There are no words here making the excess dividend into income or subjecting it to tax independently of the charge to tax on the total income. We are thus unable to treat the proviso as an independent charging section. In this view of the matter, no useful purpose will be served by referring to those cases noted by this Court in Commissioner of Income-tax v. Calcutta National Bank Ltd. (1 ), where a schedule which went beyond the purpose for which it was enacted was given effect to. The proviso here was framed to lay down the rates, and has done no more.

It remains to consider two other arguments, which were addressed to us on behalf of the Commissioner.

The first pointed out an anomaly that if there was a total income of even one rupee, the proviso could be made applicable according to its terms but not if the income was nil or negative. The Commissioner contended that such an anomaly should be avoided, and that the proviso should be interpreted in such a way as to take in all the kinds of cases.

Our answer to this is much the same as was given by the learned Chief Justice of the Bombay High Court. The learned Chief Justice o hserves :

" There seems to be no logic, there seems to be no reason nor principle why a distinction should be made between the cases of two such companies.

But if life is not logic, income-tax is much less so,

(1) [1959] 37 I.T.R. 171.

\. -

.,. --

-'1

) -

3 S.C.R. SUPREME COURT I~EPORTS 967

and it is clear that we cannot impose tax upon a

I960 sub1'ect by implication or because we think that the Commissioner of object of the legislature was a particular object." Income Tax, vVe respectfully agree with the learned Chief Justice Bombay that thoi:gh te interpretation we hav.e plaed upon Elfh~; stone the proviso might lead to some anomalies, it IS for the :>pinning &- legislature to avoid the anomalies which, according to Weaving Mitts Ltd. us, spring not from our interpretation but from the Hidayatullah J. language employed.

The second argument is that the proviso itself states that the excess dividend shall be deemed to be out of the undistributed profits of one or more years immediately preceding the previous year, and that the fiction makes the profits take the place of total income for purposes of tax. In our opinion, the fiction cannot be carried further than the purpose for which it has been put in, in the statute. The Income-tax Act creates an assessment year and a corresponding previous year. Assessment to tax in any assessment year can only be in respect of the profits of the immediately preceding previous year.

All that the fiction does is to bring profits of back years into the immediately preceding previous years, so that the requirements of the Income-tax law may be complied with.

As we have already stated, this fiction cannot be carried further than what it is intended for; it cannot be used to make these profits take the place of total income, which did not exist in the previous year and to which the rate is to be applied under the terms of the proviso.

We do not accept both the arguments, and agxee with the High Court in the answer given to the first question.

As pointed out by the High Court, the second question does not survive, after the first question is answered against the Department.

In the result, the appeal fails, and will be dismissed with costs.

Appeal dismissed.

Cochin State

THE COMMISSIONER OF INCOME TAX,

BOMBAY

L. KAPUR

M. HIDAYATULLAH, JJ.

Income-tax Act

s. 3

First Schedule

Jncorne Ta~.

s. 3

Act and the Finance Act

s 1

K. N. Rajagopal Sastri

D. Gupta

N. A. Palkhivala

S. N. Andley

J. B. Dadachanji

S 955

s. 66( 1)

Weaving Mills Ltd.

H idayatullah

Income-tax Act

First Schedule

Income-tax Act

31st day of March, 1952

India

J ammu and Kashmir

section 18

section 23A

Income-tax Act

section 2

Income-tax Act

31st day of 1 960 March, 1952

We •ving Mills Ltd.

section 23A

Income-tax Act

Income-tax Act

Income-tax Act

Section 3

Section 2

Income-tax Act

Es her

Hidayatullah

Esher

Dunedin

Section 68(2)

s. 262

section 1

Reid

Section 262(2)

Income Tax Act, 1952

Section 262(2)

Section 88(2)

Section 262(1)

S. 34(2)

English Finance Act, 1947

IJombay Court of Session

Weauing M.tls Ltd.

Hidayatllah

Rowlatt

Simonds

Income-tax Act

Weaving Milts Ltd.

s. 32

English Finance Act, 1947

s. 34(2)

Schedule of the Finance Act

Hidayatulloh

s. 3

Income-tax Act

Bombay High Court

S.C.R. SUPREME COURT I~EPORTS 967

Bombay

Weaving Mitts Ltd.

Income-tax Act


Muy5.

[llJtiU]

RAMNAGAR CANE AND SUGAR CO. LTD.

968 SUPl{EME COURT REPORTS

JATIN CHAKRAVORTY AND OTHERS.

(P. B .. GAJENDRAGADKAR, K. N. WANCHOO

and K. C. DAS GUPTA, JJ.)

Subversive Activity-Public utility concern-Strike by workmen pending conciliation with rival union-Settlement, if binding on all workmen-Legality of strike-West Bengal Security Act, r950 (W. B. XIX of r950), s. 2(9)(e), Expl. (ii)-Industrial Disputes Act, r947 (r4 of r947), ss. r8(3)(d), 22(r)(d), 24(r)(i).

Where two rival unions of workmen in a public utility concern, a sugar industry, present demands covering the entire body of workmen and while one of them carries on conciliation proceedings with the employer the other commences a strike, any settlement, arrived at in such conciliation proceedings must bind all the employees under s. 18(3)(d) of the Industrial Disputes Act, 1947, and the strike must, on a reasonable construction of the provisions of s. 22(1)(d) of the Act, amount to a contravention of it and must be illegal under s. 24( t)(i) of the Act.

It was not necessary, in order to bind the workmen to the settlement arrived at before the conciliator, to show that they belonged to the union which took part in the conciliation proceedings, since the policy underlying s. 18 of the Act is to give an extended operation to such a settlement.

The Associated Cement Company Ltd., Porbandar v. Their Workmen, [1960] 3 S.C.R. 157 and M/s. New India Motors (P) Ltd. v. K. T. Morris, [1960] 3 S.C.R. 350, referred to.

Consequently, where the courts below, on an erroneous view of the law, acquitted certain workmen of the offence of subversive activity for joining an illegal strike under s. II of the West Bengal Security Act, 1950, on the ground that the rival union to which they belonged was not a party to the conciliation proceedings, such acquittal must be set aside.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 96 of 1959.

Appeal by special leave from the judgment and order dated August 19, 1957, of the Calcutta High Court in Criminal Revision No. 1577 of 1956, arising out of the judgment and order dated August 3, 1956, of the Magistrate, :First Class, at Krishnagar, Nadia, in G. R. Case No. 69 of 1954.

0. K. Daphtary, Solicitor-General of India and P. /(. Ohatlerjee, for the appellant.

Tho respondent did not appear.

' -

3 S.C.R.

SUPB.EME COURT REPORTS 969

1960. May 5. The Judgmen~ of the Court was i960 delivered by -- G J

T . . l b l J Ramnagar Cane :xAJENDRAGADKAR, . - his apptia y specia eave and sugar co. Ltd. raises a short question about the construction and v. effect of the provisions of s. 2i(l)(d) of the Industrial Jatin Chak1avorty Disputes Act, 14 of 1947, (hereinafter called the Act). . - The appellant,, Ramnagar Cane & Sugar Co. Ltd., Ga1endragadlir J.

Calcutta, is a company incorporated under the Indian Companies Act and carries on the business of manufacturing sugar which is an essential commodity in its factory at Plassey in the District of Nadia. The appellant was declared a public utility concern or service by a notification duly issued in that behalf on October 8, 1953. The appellant employs in its business about 545 permanent men and 703 seasonal men excluding casual labourers.

A majority of the workmen employed by the appellant belong to the Ramnagar Cane & Sugar Co. Employees' Union (hereinafter called the Employees' Union), whereas a minority of workmen belong to the rival Union called Ramnagar Sugar Mill Workers' Union (hereinafter called the Workers' Union). It appears that on December 9, 1953, the Workers' Union presented a charter of demands to the appellant. This was followed by a similar charter of demands by the Employees' Union on January 20, 1954. On the same day the Workers' Union served a notice of strike on the appellant. On February 1, 1954, a meeting was held before the Conciliation Officer which was attended by the Employees' Union and the appellant. A notice of the said meeting had been served on the Workers' Union as well.

On February 2, 1954, the appellant suggested to the conciliation officer that it should discuss the matter separately with the representatives of the two Unions but to this suggestion the Workers' Union took an objection. Thereupon the said Union informed the conciliation officer that it assumed that the conciliation had failed. Consequently on February 3, 1954, the conciliation officer sent his report under s. 12, sub-s. (4) of the Act about the failure of conciliation with the Workers' .Union only. On February 25, 1954, the appellant and the Employees' Union arrived at a settlement, and it was recorded in the form of a memo

r960 of settlement which was duly signed by both the - parties. Meanwhile, on Februa'ry 13, 1954, the Ramnagar Cane W k

, U • A 1 . and sugar co. Ltd. or ers mon commenced a strike. .e>S a resu t of v. this strike a crimjnal complaint was filed against the Jatin Chukravorty eleven respondents under s. 11 of the West Bengal - Security Act, XIX of 1950, and a charge was subse-

Ga~••dragadkar J. quently framed against them.

The case as formulated in the charge against the said respondents was that on or about February 13, 1954, at Plassey each one of them did commit subversive acts which were intended or likely to impede, delay or restrict the work of Ramnagar Cane & Sugar Co. Ltd., which was a public utility concern for production of sugar, an essential commodity. The respondents pleaded not guilty to the charge substantially on the ground that the strike in question was not illegal. It was not denied that they had gone on strike on February 13, 1954; it was, however, urged that since the strike was lawful the offence charged could not be said to be proved. The learned magistrate upheld the respondents' plea and acquitted the respondents. The appellant challenged the correctness of the said order of acquittal by preferring a revisional application before the Calcutta High Court. Its revisional application, however, failed since the High Qourt held that the strike was not illegal and agreed with the conclusion of the trial magistrate. The appellant then applied for a certificate before the said High Court but its application was dismissed. Then the appellant applied for and obtained special leave from this Court; and the only point which is raised on its behalf before us is that in coming to the cone.lusion that the strike in question was not illegal the Courts below have misconstrued the provisions of s. 22(l)(d) of the Act.

Before we consider this point it is relevant to refer to the relevant provisions of the West Bengal Security Act. Section 11 of this Act provides that if any person commits any subversive act he shall be punishable with imprisonment for a term which may extenq

to five years or with fine or with both. Section 2(9)(e) defines a subversive act as meaning any act which is intended or is likely to impede, delay or restrict-

, -

(i) any work or operation, or (ii) any means of transport r96o or locomotion,-necessary for the production, procure- R l d. 'b t' f t' l amnagar Cane ment, supp y or istn u 10n o any essen ia comand Sugar co. I.Id. modity, except in furtherance of an industrial dispute v. a:> defined in the Industrial Disputes Act, 1947. JatinChakravorty Explanation (ii) to this definition provides that an -- illegal strike or an illegal lock-out as defined in s. 24 Gajendragadkarf. of the Industrial Disputes Act, 1947, shall not be deemed to be an act in furtherance of an industrial dispute for the purposes of sub-cl. (e). It is thus clear that if the impugned strike is held to be illega.l it would constitute a subversive act as defined by s.2(9)(e) of the West Bengal Security Act. This position has been accepted in the courts below. That is why the only question which arises for our decision is whether the strike in question is an illegal strike under s. 24 of the Act.

Section 24 of the Act provides, inter alia, that a strike shall be illegal if it is commenced or declared in contravention of s. 22 or s. 23. That takes us to the provisions of s. 22, and we have to find out

whether in commencing the strike on February 13, 1954, the respondents had contravened the provisions of s. 22(l)(d) of the Act.

Section 22(1J(d) lays down that no person employed in a public utility service shall go on strike in breach of contract during the pendency of any conciliation proceedings before a conciliation officer and seven days after the conclusion of such proceedings. The effect of this provision is clear. If a strike is declared in a public utility service during the pendency of a conciliation proceeding it is illegal. Was any conciliation proceeding pending between the appellant and the respondents at the relevant time? That is the question which calls for an answer in the present appeal. The respondents contend that the Workers' Union to which they belonged had left the conciliation proceedings on February 2, 1954, and that in fact the conciliation officer had submitted his failure report to that effect on February 3, 1954; and so, between the Workers' Union and the appellant no conciliation proceeding was pending after February 5, 1954, in any case when the Government received the failure report of the

'96° conciliation offi.cer.

On the other hand, the appellant contends that conciliation proceedings with the Emplo- Ramn.7.f:ar Cane U d 1 d and Sugar Co. Ltd. yees' 11ion contin"{Jc unti February 25, 1954, an m v. fact settlement was arrived at between the parties on .Jatin ChakrnvMty that date and duly signed by them. The appellant's -- argument is that the pendency of the conciliation Gajendragadkar ]. d • b h II d h E 1 ' procee mgs etween t e appe ant an t e mp oyees Union makes illegal the strike in which the respondents joined on February 13, 1954. The High Court bas held that since it is not shown that the respondents belong to the Employees' Union it would not be possible to hold that any conciliation proceeding was pending between them and the appellant. It is the correctness of this view that is challenged before us.

In appreciating the merits of the rival contentions thus raised in this appeal it is necessary to bear in mind the scheme of the Act. It is now well settled that an industrial dispute can be raised in regard to any matter only when it is sponsored by a body of workmen acting through a union or otherwise. When an industria.l dispute is thus raised and is decided either by settlement or by an award the scope and effect of its operation is prescribed by s. 18 of the Act.

Section 18(1) provides that a settlement arrived at by agreement between the employer and the workman otherwise than in the course of conciliation proceed-, ing shall be binding on the parties to the agreement ; whereas s. 18(3) provides that a settlement arrived at in the course of conciliation proceedings which has become enforceable shall be binding on all the parties specified in els. (a), (b), (c} and (d) of sub-s. (3).

Section 18(3)(d) makes it clear that, where a party referred to in cl. (a) or. (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, .as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part., would be bound by the settlement. In other words, there can be no doubt that the settlement arrived at between the appellant and the Employees' Union during the course of conciliation proceedings on February 25, 1954, wonld bind not only the members of the said Union but all workmen

employed in the establishment of the appellant at that x960 date. That inevitably me!l.ns that the respondents Ramnagar Cane would be bound by the said settlement even though and sur, ar co. Lid. they may belong to the rival Union. In order to . v. bind the workmen it is not necessary to show that the Jatm Chakravorty said workmen belong to the Union which was a partyG . d--dk 1 h d b c h ']' t Th h l a1en rag, ar . to t e tspute e1ore t e conc1 ia or. e w o e policy of s. 18 appears to be to give an extended operation to the settlement arrived at in the course of conciliation proceedings, and that is the object with which the four categories of persons bound by such settlement are specified in s. 18, sub-s. (3).

In this connection we may refer to two recent decisions of this Court where similar questions under s. 19(6) and s. 33 (l)(a) of the Act have been considered. (Vide: The Associated Cement Companies Ltd., Porbandar v. Their Workmen(1) and Messrs. New India Motors (P.) Ltd. v. K. T. Morris (2) ).

This position has an important bearing on the construction of s. 22(l)(d).

When the said provision rafers to the pendency of any conciliation proceedings it must reasonably be construed to mean any conciliation proceedings which may lead to a settlement before the conciliation officer and which settlement may bind all the workmen concerned ; in other words, if a conciliation proceeding is pending between one union and the employer and it relates to matters concerning all the employees of the employer, the pendency of the said conciliation proceeding would be a bar against all the employees of the employer employed iri a public utility service to go on a strike during the pendency of the said proceeding under s. 22 (I )(d).

In our opinion, this construction would be consistent with the specific provisions as to the effect of conciliation settlements prescribed bys. 18(3)(d) and is harmonious with the general policy of the Act ; otherwise, it would unnecessarily disturb industrial peace, if one union employed in a public utility service is allowed to go on strike even though demands common to the members of the said union as well as the rest of the workmen are being considered in conciliation proceedings bet ween the said employer and his other employees

(r) [196o] 2 S.C.R. 974

(2) [1960] 3 S.C. R. 350. 126

z91; o represented by another union. It would be another matter if the conciliation proceedings in question are Ramnaga• Cane confined to specific demands limited to a specified and Sugar Co Ltd. v. class of employees. In such a caee it may be contend ]atin Chakrnvmty ed that the other workmen who are not interested in -- the said demands may not be bound by the said Gajendragadkar J. proceedings. That, however, is another aspect of the matter with which we are not concerned in the present appeal. We have seen the charter of demands submitted by both the Unions to the appellant, and it is clear that the said demands cover all employees of the appellant and not only one section of them; in other words, both the charters have made demands the benefit of which was; intended to accrue to all the workmen of the appellant; they are not demands by one section of the workmen belonging to one separate part of the establishment run by the appellant. The demands made are no doubt by two Unions but they cover the same ground and in effect they represent the demands made by the whole body of workmen. In fact the conciliation settlement reached between the appellant and the Employees' Union has benefited the members of the Workers' Union as much as those of the Employees' Union. That :being so we think the courts below were in error in putting an unduly narrow and restricted construction on the provisions of s. 22(l)(d) of the Act. In our opinion, the pendency of the conciliation proceedings between the appellant and the Employees' Union attracts the provisions of s. 22(l)(d) to the strike in question and makes the said strike illegal under s. 24 (1 )(i) of the Act. If the strike is illegal it follows that the respondents have taken part in a subversive activity as defined by s. 2(9)(e) of the West Bengal Security Act and as such

ha.ve committed an offence punishable under s. 11 of the said Act.

We would accordingly set aside the order of acquittal passed by the High Court in favour of the respondents and convict them of the offence charged. The Solicitor-General has fairly told us that the appellant has come to this Court not so much for the purpose of pressing for the conviction of, and a heavy sentence against, the respondents but for obtaining a decision

h r

...

....,....

,._~ -._,

on the important question of law in regard to the c960 construction of s. 22 (l)(d) of the Act.

Under the R -- c circumstances of this case we think the ends of justice anI';::;::~/2a. would be met if we convict the respondents of the v. offence charged and direct that each one of them Jatin Chakravo1ty

should pay a fine of rupee one.

Appeal allowed.

JAI KAUR & OTHERS

v .

SHER SINGH & OTHERS. (P. B. GAJENDRAGADKAR, K. N. W ANCHOO and K. c. DAS GUPTA, JJ.)

Hindu Law-] ats of Grewal got-Customary law of succession- N on-ancestral property-Daughter, if pref erred to collaterals- Doctrine of surrender-Gift to daughter by widow, if accelerates succession-Rattigan's Customary Law of the Punjab, para 23-Riwaji-am, r882, Question 43.

Under the customary law prevalent amongst the Hindu Jats of Grewal got in Ludhiana, a daughter is a preferential heir to her father in respect of his self-acquired property to his collaterals.

Rattigan's Digest of Customary Law, paragraph 23, which records the correct law on the point, is not in conflict with Riwaj-i-am, 1882, Question No. 43, which refers only to ancestral property and not to self-acquired property at all.

Mt. Hurmate v. Hoshiaru, A.I.R. 1944 Lah. 21, approved.

Mohinder Singh v. Kher Singh, A.LR. 1949 East Punjab 328, disapproved.

Mt. Subhani v. Nawab, A.LR. 1941 (P.C.) 21, referred to.

Case-law discussed.

The doctrine of surrender in Hindu Law is based on a theory of complete self-effacement by the widow in favour of the reversioner and in order that such surrender. can accelerate the reversion, it must be of the entire interest in the entire property.

The law does not recognise a partial self-effacement nor a division between ancestral and non-ancestral property. The exception made in respect of a small portion of the property retained for the widow's maintenance does not detract from the rigour of the rule.

Rangaswami Gounden v. Nachiappa Gounden, (1918) L.R. 46 I.A. 72 and Phool Kau.r v. Prem Kaur, [1952] S.C.R. 793, referred to.

Consequently, in a case where a Hindu widow of the Jat Grewal got made a gift only of the self-acquired property of her husband to her daughters such gift had not the effect of a surrender in law so as to accelerate the daughters' succession and the gift could not be valid beyond her lifetime.

Gajsndragadkar j

May 6.

RAMNAGAR CANE AND SUGAR CO. LTD

JATIN CHAKRAVORTY AND OTHERS

P. B .. GAJENDRAGADKAR

K. N. WANCHOO

K. C. DAS GUPTA, JJ.

s. 2(9)(e)

Industrial Disputes Act

s. 18(3)(d)

Industrial Disputes Act, 1947

s. 22(1)(d)

s. 24( t)(i)

s. 18

[1960] 3 S.C.R. 157

[1960] 3 S.C.R. 350

K. Daphtary

s. 2

Ramnagar Cane & Sugar Co. Ltd.

Companies Act

Plassey

Nadia

October 8, 1953

Ramnagar Cane & Sugar

Ramnagar Sugar Mill Workers' Union

December 9, 1953

January 20, 1954

February 1, 1954

February 2, 1954

February 3, 1954

s. 12

February 25, 1954

Februa'ry 13, 1954

Jatin Chukravorty

s. 11

February 13, 1954

Ramnagar Cane & Sugar Co. Ltd.

Calcutta High Court

s. 22(l)(d)

Section 11

Section 2(9)(e)

Industrial Disputes Act, 1947

s. 24

Industrial Disputes Act, 1947

s. 24

Section 24

s. 22

s. 23

s. 22

s. 22(l)(d)

Section 22(1J(d)

February 5, 1954

s. 18

Section 18(1)

s. 18(3)

Section 18(3)(d)

Ramnagar Cane

s. 18

s. 18

s. 19(6)

s. 33

s. 22(l)(d)

s. 22

[1960] 3 S.C. R. 350

Ramnaga• Cane

s. 22(l)(d)

s. 22(l)(d)

s. 24

s. 2(9)(e)

s. 11

s. 22

JAI KAUR

SHER SINGH

P. B. GAJENDRAGADKAR

K. N. W ANCHOO

K. c. DAS GUPTA

Riwaj-i-am, 1882

(1918) L.R. 46 I.A. 72

Gajsndragadkar