:Pebruary 11

750 SUPREfE COURT REPORTS [1g64]

JAGDEV SINGH SID.'IANTI

PRATAP SINGH DAULTA

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS

GUPTA J.C. SHAH AND N. RAJAGOPALA AYYANGAR JI.)

El1ctions-A.dvocating the cause of a certain lanuage-lf amount. .. to a corrupt prar:tict-l 1f:ing 'Om Dhwaf'-ll amounts to a corrupt practice-Representation of the People Act, 1951 (Act .tf3 of 1951),

I. 123(3),

The appellant was declared elected to the liou::; e of the l'eo::il~ from a parliamentary constituency. The respondent No. 1 i.:ha:Ienged

the election of the appellant on the ground that the appellant, hi9 election and other agents cominitted many corrupt practice; falling within s. 123 of the Represen.tation of the People Act, 1951. The main grievance of respondent No. l was thlt the appel1ant and his agents h:id made appeal! to t'.1e electorate to vote for hi1n or to refrain from voting for Daul ta ( Repondent No. l ) ''on t11e ground of his religion and language", and that the appeJlarit and his agents use l a religious symbol-a fi.:.g called "Om Dhwaj" in all 1he election iT'Ceiiags.

The case cf the appeib.nt was th3t the flag was not a 1eligious symbol and denied that it was used on any O'.::caior by him or hi<> age:i.ts and

submitted that it \Y:t~ usr; d 0;1iy ty o; e }.".erson who was always accustomed to carry it on h:-; mctor c:-ir.

The appellant ai.o pleaded that an appeal to the eiector.:tle en the ground of languagf.': or rdigion did not amount to a corrupt practi.:-0 '"ithin the meaning cf s. 123 of the Act.

The Tribunril di.c.mi".""'d the ele.:tion petition of re5pondent No. l but the High Court allo\ved the appeal and declared the election of

the appellant void unJ.:r s. l~.J(l)(b) of the Act.

I-fence the appeal.

Held (i) Th~ use of or appe:il to the national or reiigions symbols to be a corrupt practice mus~ be rnade by the candidate or his electian agent, or by some other person with the consent of the candidate or his election 01gent, before it can be regarded as a £-round for declaring the election void.

(ii) 'Om' is regarded by Hindus as having high spiritual or mystical -efficacy: it is used at the commencement cf the recit:-.tions of religious prayers.

But the attribute of spiritual sigflificance will not necessarily impart to its use on a :flag the character of a n:ligious symbol within the meaning of s. 123.

A symbol stands for or represents something material or abstract. To be a religious symbol, there must be a visible representation of a thinJ?: of concept hich is religions. To •om• high 'lpiritual or mystical e:f!cacy is undoubtedly ascribed, but its use on

6 S.C.R. . SUPREME COURT Rl<:i'ORTS 751

a flag does not symbolise religion or anything religious.

The High Court err~ in holding that the 'Om' flag \vas a relicious sytnbol and its use in an election comes within the purview of cl. (3) of 1. 123

-Of. the Ac I.

(iii) Clause (3) of •· 123 of the Act must be read in the light of the fund, mental right which is guaranteed by Art. 29(1) of tho .Constitutio.n; the clause "annot be read as tresyassing upon the fuoda~

mental right under Art. 29(1).

Artic\e 29( I) of the Constitution has conferred the right, amona -others, to conse1ve their language upon the citiLCm of India.

Right to conserve the language of the citizens nclndcs the right to agitate

far protection of the language. Political agitation for conservation of 'the language of a section of the ciuzens cannot therefore he regarde4 " a corrupt practice within the meaning of s. 123(3) of the Act.

lamuna Prasad Mukhariya and Ors. v. Lachhi Ram •nd Ors., [195S]1 S.C.R. 608, distinguished.

(iv) The corrupt practice d•flrted bx cl. (3) of s. 123 ii com1111tted when an appeal is made either' to vote or. refrain from v0ting on tho *round ot a candidate's language! lt is the. appeal to ithe lectorate on a ground personal to the candi'date relating to his laneuage which .attracts tte b!tn of s. 100 read with s. 123("l). Therefore it is only when the electcrs are asked to vote or not to vote beca 11se of the particular language of the candidate that a corrupt practice may he deemed to be committed. Where, however, for con3ervation of language of the electorate appeals are made to the electorate and promises are :given thal steps \Vculd be taken to conserve that language, nlaking af

such appeals or promises will not amount to a corrupt practice.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 936 <>f 1963.

Appeal from the judgment and order dated May 31, 1963, ol the Punjab High Court in First Appeal from Order No. 2/3 o.f 1963.

Purshotham Trikamdas, Rajinder Nath Mitta/, R. B.

Datar, V. Kumar, B. P. Singh and Naunit Lal, for the appellant,

G. S. Pathak, Bawa Shiv Charan Singh, Hardev Singh, f{ajendra Dhawan, Anand Prakash and Y. Kumar, for respondent No. 1.

196#

l41dtv Sii:ll v.

Pratop Singh

kgdeY

February 12, 1964. -The J udgrnent of the Court was

Singh delivered by:- ... i.'lrltap Singh

Shah J.

SHAH, J.-At the general elections held in February- 1962 five candidates contested the election to the House of the People from the Jhajjar parliamentary constituency. 011 February 27, I 962 the appellant Jagdev Singh Sidhanti was declared elected.

Pratap Singh Dauila who was one of thccandidates at the election then filed a petition with the Elc tion Commission praying, inter a/ia, that the election of th• appel!ant be declared void on the ground that the appellant-

SLcJhanti-his agents, and other persons with his consent, had committed certain corrupt practices in connection witb. the election. Daulta stated that the appellant Sidhanti w:u set up as a candidate to contest the election by the Hariana _ Lok Samiti, that the appellant and six other persons-

Piare Lal Bhajnik, Ch. Badlu Ram, Pt. . Rudh Dev, Prof.

Sher Singh, Mahashe Bharat Singh and Acharya Bhagwan Dev who were leaders and active workers of the GurukuJ -Section of the Arya Samaj had organised a political movement called "the Hindi agitation" in 1957 the real object of which was to promote feelings of enmity and hatred between the Sikh and the Hindu communities in the State of Punjab "on the ground of religion and language" to promote their prospects in the general elections to be held in 1962. and for that purpose they held meetings in the Hariana region of tho Punjab and appealed to the electorate to vote for Sidhantt

"on the ground of his religion and language", and used a religious symbol-a flag called "Om Dhwaj" in all the~ meetings, that the _appellant himself made similar appeals le>

the electorate and appealed to them to refrain from votins for Daulta who was a sitting ipember of the House of th• People from the constituency stating that he-Daulta--wat an enemy of the Arya Samaj and of the Hindi language. that during the election campaign fifteen meetings were held between December JO, 1961 and February 18. 1962 anc! at all these meetings appeals were made to the electorate on th• ground of religion and language of Sidhanti, and attempts were made to promote feelings of enmity and hatred betwee11 Sikhs and Hindus of the Punjab. Allegations about unducinfluence on the voters in the exercise of their free electoral right were also made in the petition, a12d details of th~

alleged corrupt practices were furnished in the schedule annexed to the petition.

Sidhanti denied that the six persons who were named as his agents and supporters ever acted as his agents in his election campaign and submitted that they were merely interested

in the success of the candidates set up by the Hariana Lok Samiti and acted throughout "on their own and not as his agents".

He also submitted that the Hariana Lok $qmiti had no connection with the Arya Samaj, it being a political organization started by Prof. Sher Singh who was an important political leader in the Hariana region.

Sidhanti admitted that he had participated in the meetings to canvass vntes, but claimed that he was not responsible for convening the meetings or for the speeches made by others in those meet ings, that the Om flag was not a religious symbol and denied that it was used on any occasion by him or his agents or the six persons named by Daulta in his petition, except Bhgwan Dev who was accustomed "throughout his career" to carry a pennant with "Om" and his own name inscribed thereon on his motor vehicle, but carrying of such a flag or pennant on Bhagwan Dev's vehicle during the election was not with his (Sidhanti's) consent and that it did not amount co commission of a corrupt practice as defined in the Act, that the residents of Hariana area were mainly Hindi-speaking, but the Government of Punjab had made Punjabi languge in Gurmukhi script a compulsory subject at various level~ of school education and this gave rise to a wide-spread agitation against the policy of the Government, that to resist the implementation of the policy and the programme of the Government in the administrative, economic and developmental spheres and to mitigate the hardships of the residents t'f the Hariana region and to secure redress of their grievances the Hariana Lok Samiti was formed, and an appeal to the electorate to secure a reversal of the policies and programme of the Government was not. it was submitted, an appeal on the ground of language or religion and did not amount to a corrupt practice within the meaning of s. 123 of the Representation of the People Act, 1951.

The Tribunal held, inter alia, that the "Om flag" was not a "religious symbol" of the Arya Samaj, that no satisfactory proof was adduced that Om flag had been used as a

134-159 S.C.-48

196f

laf(l1v Sln1h •• Pratap Singh

Shah /.

19M

Jagdev Slnglt v.

Pratap Singh

Shah J.

symbol of Arya Sarnaj or that an appeal to secure votes with the aid of the flag was made to the electorate by Sidhanti or by any one else with his consent, that there was no satisfactory evidence to establish that appeals were made to the electorate to vote for Sidhanti or to refrain from voting for the other candidates on the ground of religion or language, and that the applicant Daulta failed to prove that an appeal on the ground of caste, community or religion or language had been made to the electorate to further the prospects of Sidhanti or to prejudicially affect the election of the other candidates. On these , and findings recorded on other issues not material in this appeal, the petition filed by Daulta was dismissed by the Election Tribunal.

Daulta prefered an appeal against that order to the High Court of Judicature for Punjab. The High Court held that the word "Orn" is a religious symbol of the Hindus in general and of the Hindus belonging to the section known as Arya SamaJ in particular and that the flag bearing the inscription "Om" is a religious symbol, that "Om Dhwaj" was flown during the election campaign on the election offices of the Hariana Lok Samiti especially at Sampla and Rohtak, that the. Samiti office was used by Sidhanti for his election campaign, that Hariana Lok Samiti was generally using the "Om Dhwaj" to further the prospects of its candidates, that out of the agents and supporters of Sidhanti "Bharat Singh at least once and Bhagwan Dev invariably used" the Om flag on their vehicles while attending the meetings convened by the Hariana Lok Samiti in furtherance of the election campaign of Sidhanti, that the Om flag was flying "on the panda! of the meeting" held at Majra Dubaldhan on January 19, 1962 when Sidhanti and his agents and supporters delivered speeches in support of the election campaign and that at the meeting held at Rohtak town, Piare Lal Bhajnik sang a song in the presence of Sidhanti, the purport of which was that the honour of the Om flag should be upheld, that Bhagwan Dev was using the Om flag with the consent of Sidhanti and that Piare Lal Bhajnik at the Rohtak town meeting also sang

the song in honour of the Om flag with the consent of Sidhanti.

The High Court further held that the appellant had delivered speeches at Majra Dubaldhan in the panda/ on which the

Om flag was flying, that as even an isolated act of the use

of or appeal to the Om flag may constitute a corrupt practice under s. 123(3) that corrupt practice by Sidhanti and his agents and by his supporters with his consent was established.

The High Court also held that Sidhanti had appealed for votes on the ground of his language and hi\d

asked the electorate to refrain from voting for Daulta on the ground of the language of the latter, and such appeals constituted a corrupt practice. The High Court accordingly allowed the appeal and declared the election of Sidhanti void under s. lOO(l)(b) of the Act. Against the order this appeal is preferred with certificate granted by the High Court.

Two principal questions which survive for determination in this appeal are: ( 1) Whether a religious symbol was used in the course of election by the appellant, his agents or other persons with his consent in furtherance of the prospects of his election; and

(2) Whether appeals were made to the electorate by Sidhanti, his agents or other persons with bi<

consent to vote in his favour on account of his language and to refrain from voting in favour of Daulta on the ground of his language. 1n order to appreciate the plea raised by counsel for the parties and their bearing on the evidence it may be useful to refer to the political background in the Hariana region and the constituency in particular, in which corrupt practices are alleged to have been committed. The territory of the State of Punjab is divided into two regions-the 'Hindi-speaking region' and the 'Punjabi-speaking region'. The Hindispeaking region is very largely populated by Hindus, while in the Punjabi-speaking region the population is approximately equally divided between the Hindus and Sikhs. In the Punjab before the partition, Urdu and English were the two official languages.

After the partition a controversy about the official language arose. The Government of Punjab decided to replace Urdu and English by Hindi in the Hindispeaking region and Punjabi in the Punjabi-speaking region, and for that purpose a scheme called the 'Sachar formula' was devised. the salient feature of which was that every student reading in the Punjab schools, by the time he passed

19M

Jagtkv Singh •• Pratap Singh

Shah J.

Shah /.

his matriculation examination should be proficient both in Hindi and Punjabi. Under the scheme two Regional Committees were formed-one known as the Hindi Regiona I Committee and the other the Punjabi Regional Committee.

The function of the Committees was to advise the' local Government in matters of finance and other related matters.

There was great resentment against the formation of the Regional Committees and the implementation of the Sachar formula which resulted in the launching of a movement called "the Hindi agitation". The agitation against the language policy of the Government gained strength and there was a great mass movement in 1957 in the entire State of Punjab.

In the last week of December 1957 there was a settlement between the organisers of the movement and the State Government and the movement was called off. It appears that some of the leading figures in this agitation attempted to make political capital out of this movement and set themselves up as probable candidates for the next election.

In the Arya Samaj in the Punjab there are two major sections, one called the 'Gurukul Section' and the other called the 'College Section'. The Gurukul Section is again divided into the Hariana Section and the Mahashe Krishna Section. It is the case of Daulta that it is the Gurukul Section of the Araya Samaj relying upon the religious and linguistic differences which sought to make at the time of the election, appeals to religions and use of religious symbols.

As we have already observed, Daulta challenged the election on the ground that Sidhanti, his election and other agents committed many corrupt practices. Before the Tribunal he restricted his case to the corrupt practices falling within els. ( 2). ( 3) and (3A) of s. 123 of the Representation of the People Act 1951.

His plea of undue influence falling within cl. (2) failed before the Tribunal and also before the High Court, and it has not been relied upon before us.

Similarly his plea that Sidhanti, his election and other agents had promoted or attempted to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community, or language was negatived by the Tribunal and also by the High Court and that plea also does not fall to be deiermined by us.

Dauila had also alleged

that appeals were made by Sidhanti and his election and other agents, to the electorate to vote for him or refrain from voting for Daulta on the ground of his--Sidhanti's-religion and language and that Sidhanti and his agents used and appealed to religious symbols such as the Om flag for the furtherance of the prospects of the election of Sidhanti and for prejudicially affecting the election of Dauila. It is on this last question about the use of and appeal to religious symbols and appeal to the language of the two candidates for the furtherance of the prospects of the election of Sidhanti that the Tribunal and the High Court have differed.

It may be useful to refer to the relevant provisions of the Act. before dealing with the matters in dispute.

Section 100(1) sets out the grounds on which an election may be declartd void.

In so far as that section is material in the present appeal, it provides:

"Subject to the provisions of sub-section (2) if the Tribunal is of opinion.-

(a)

(b)

(c) (d)

* • • * • that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent:

• • • • • • • • • * the Tribunal shall declare the election of the returned candidate to be void." By sub-s. (2) if in the opinion of the Tribunal. a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the Tribunal is satisfied

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent; (b) • • • * •

(c) that the candidate and his election agent took all

reasonable means for preventing the commission of corrupt practice at the election; and

Jagdev Singh

•• Pratap Singh

Shah J.

JQld" Singh •• Pratap Singh

.hah J.

(d) that in all other respects the . election was free from any corrupt practice on the part of the candidate or any of his agent, the Tribunal may decide that the election of the returned candidate is not void.

Section 123 sets out what shall be deemed to be corrupt practices for the purpose of the Act.

Clause (3) as amended by Act 40 of 1961, which alone is material in this appeal, provides:

"The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion. race, caste, community or language or the use of, or appeal to, religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate." The clause falls into two parts (i) an appeal by a candidate, his' agents or by other persons with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language; and (ii) use of or appeal to religious symbols, national symbols or national emblem.~ for the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of any candidate.

The first part in terms makes it a condition that the appeal is made by a candidate or his agent or any other person with the consent of the candidate or his agent.

There is no reference in the second part to the person by whom the use of, or appeal to, the religious or the national symbols, such as the national flag or the national emblem may be made, if such use of or appeal to them has been made to further the prospects of the election of the candidate or to prejudicially affect the election of any candidate.

But it is implicit in s. 123(3), having regard to the terms of s. 100, that the use of or appeal to the national or religious symbols must be made by the candidate or his election agent or by some other person with the consent of the candidate or his election agent, before it can be regarded as a ground for declaring the election void. If the evidence on the record fails to establish \

the responsibility for the use of or appeal to the religious or national symbols by the returned candidate or by his election agent or by any other person with his consent or his election agent, no ground for setting aside the election may be deemed to be made out.

The first question to which we must then turn is, whether the "Om flag" can be regarded as a "religious symbol" within the meaning of s. 123(3).

This question has to be examined in two branches-(i) whether the word "Om" has any special religious significance, and, (ii) whether the use of "Om" on a flag or pennant makes it a religious symbol. If the respondent Daulta establishes that the "Om flag" is a religious symbol, the que&tion will arise whether the use of or appeal to the Om flag was made in the election campaign for furtherance of his prospects by Sidhanti or by his agents or other persons with his consent or the consent of his election agent.

The expression "Om" is respected by the Hindus generally and has a special significance in the Hindu scriptures.

It is recited at the commencement of the 1ecitations of Hindu religious works. Macdonell in his A Practical Sanskrit Dictionary states that "Om" is the sacred syllable used in invocations, at the commencement of prayers, at the beginning and the end of Vedic recitation, and as a respectful salutation: it is a subject of many mystical speculations.

In the Sanskrit-English Dictionary by Monier-William it is said that '"Om" is a sacred exclamation which may be uttered at the beginning and end of a reading of the Vedas or previol.'s!y

to any prayer; it is also regarded as a particle of auspicious salutation.

But it is difficult to regard "Om" which is a preliminary to an incantation or to religious books as haVing

religious significance. "Om" it may be admitted is regarded as having high spiritual or mystical efficacy: it is used at the commencement of the recitations of religious prayers. But the attribute of spiritual significance will not necessarily impart to its use on a flag the character of a religious symbol in the context in which the .expression religious symbol occur~ in the section with which we are concerned.

A symbol stands for or represents something material or abstract. In order to be a religious symbol, there must be a visible

lagdev Singh v.

Pratap Sia1h

Shah /.

J96f

laff/IV Singh v.

PNIQp Singh

Shilli J.

representation of a thing or concept which is religious. To 'Om' high spiritual or mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious.

It is not easy therefore to see how the Om flag which merely is a pennant on which is printed the word 'Om' can be called a religious symbol.

But assuming that the Om flag may be regarded as a religious symbol, the evidence on the record is not sufficient to establish that by Sidhanti, his election agents or any other person with his consent or the consen\ of his election agent, Om flag was used or exhibited, or an appeal was made by the use of the Om flag to further the prospects of Sidhanti at the election.

It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful' candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practice~ 'at the election, lies heavily. upon the applicant to establish his case, and unless it is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail.

The evidence may be examined bearing this approach to the evidence in mind.

Between the months of December 10, 1961 and February 18, 1962, fourteen meetings were held in the constituency as a part of the election campaign of Sidhnti.

These meetings were held at Beri, Barhana, Dighal, Akheri Madanpur, Sarnpla, Ladpur, Majra Dubaldhan, Pakasma. Assaudha.

Jhajjar, Badlt,. Dulehra, Sisana and Bahadurgarh.

There was, it is claimed by the applicant. one more meeting on February 4, 1962, at Rohtak town which is outside the Jhajjar constituency.

The Tribunal held that the evidence was not sufficient to prove that in the meetings at Beri, Barhana, Dighal, Sampla, Ladpur, Pakasma. Assaudha, Jhajjar, Badli, Dulehra, Sisana and Bahadurgarh 'Om' flag was exhibited in furtherance of the election prospects of Sidhanti and with that view the High Court bas agreed.

The Tribunal

also held that there was no reliable evidence that at Majra Dubaldhan on January 19, 1962, and at Rohtak town on February 4, 1962, 'Om' flag was used as a religious symbol.

On this part of the case, however, the High Court disagreed with the Tribunal.

Rohtak town was not, but Rohtak suburban area was, within the constituency in which Daulta and Sidhanti were contesting the election.

Therefore the only meeting which took place within the constituency where Sidhanti and Daulta contested the election in which according to the High Court the Om flag was used was at Majra Dubaldhan held on January 19, 1962. Six witnesses directly spoke about the details of that meeting, beside Sidhanti.

Sidhanti said generally that the evidence given by the witnesses for Daulta regarding what transpired at Majra Dubaldhan and three other meetings was not true.

The witnesses for Daulta were Roop Ram, Sukhi Ram and Ramdhari Balmiki.

The witnesses who supported the case of the appellant were Piare Lal, Prof. Sher Singh and Jug Lal. It may be observed that the High Court placed no reliance upon the testimony of Ramdhari Balmiki and no arguments have been advanced before us suggesting that his testimony was reliable.

Roop Ram-a police constable-has deposed that about mid-day on January 19, 1962, a meeting was held at Majra Dubaldhan and that at that meeting Piare Lal sang a bhajan about the Om flag and he saw the Om flag flying on the panda/ of the meeting which was attended by four to five thousand persons.

According to the witness Nanhu Ram, Badlu Ram, Jagdev Singh Sidhanti, Bhagwan Dev, Ramdhani Balmiki, Attar Singh, Prof. Sher Singh and Acharya Bhagwan Dev made speeches, that Acharya Bhagwan Dev in the course of his speech asked people not to vote for Daulta but to vote for the candidate who was seeking election on the Hariana Lok Samiti ticket. In cross-examination he admitted that he had been supplied with a copy of the report which he had made to the D.l.G., C.I.D ..

Chandigarh, and that he had gone through the report two or three times, before he gave evidence. The Tribunal ref1Jsed to place reliance upon the testimony of this witness and of another police constable Ganesh Dass who claimed to have remained present in the various political meetings. It appears that the witness had memorised the so-called reports and the same were not made available to counsel for Sidhanti

lagdev Singh •• Pratap Singh

hah J.

Shah I

to challenge the truth of. the statements made by the witnesses. The High Court has not given any adequate reasons for accepting the testimony of the witness, when the Tribunal which had opportunity of seeing the witness and noting his demeanour had refused to accept the testimony.

Sukhi Ram deposed that he was a sarpanch of Dubaldhan Panchayat for about two years, and that he was present at the meeting convened by the Hariana Lok Sarniti on January 19, 1962, for canvassing votes for the candidates of Hariana Lok Sarniti, that Prof. Sher Singh and Sidhanti came in a jeep on which there was flying flag with 'Orn' inscribed thereon, that he saw several other vehicles flying the Orn flag and that the vehicle in which he went to the meeting also was carrying the Om flag. The Tribunal was of the view that the facts elicited in the cross-examination of this witness disclosed that his recollection about other meetings which he had a !tended was poor, whereas his recollection about the meeting held at Ma jra Dubaldhan was very clear, and that the reasons given by the witness for specially remembering the details of the proceedings of the meeting in Majra Dubaldhan and not of other meetings could not be accepted. In the view of the Tribunal the witness was interested in Daulta, and this inference was supported by the fact that Dauila had sent him a copy of his election petition before it was even presented to the Election Commission.

It also appears that the evidence given by this witness was inconsistent with the summary of the meeting given in Sch. 'D' to the petition and for this reason according to the Tribunal the testimony of the witness "did not carry conviction" and "it was not safe to rely upon it". The High Court after summarising the effect of the evidence observed that it did not appear from the deposition given by the witness that be was in any manner interested in Dauila. In so observing the High Court appears unfortunately to have lost sight of the grounds given by the Tribunal.

Witness Piare Lal stated that he was present at the meetine held at Majra Dubaldhan and that none of the speakers suggested that the electors should vote on the ground of caste, creed, religion or language.

He also stated that at

none of the meetings there was any Om flag either inside or outside the panda! of the meetings. Prof. Sher Singh who was another witness examined on behalf of Sidhanti deposed that slogans shouted in the meetings were political slogans and that he did not see Om flags in any panda/ of the meetings, and that he had instructed all the candidates and the members of the Hariana Lok Samiti not to use any flag or symbol other than the symbol allotted to them.

Jug Lal, another witness examined on behalf of Sidhanti, stated that at the meeting at Majra Dubaldhan on January 19, 1962, there were no Om flags to be seen anywhere either inside or outside the meeting and that there were no Om flags flying on any of the vehicles. The testimony of the witnesses Piare Lal, Prof. Sher Singh and Jug Lal was discarded by the High Court, because in their view the witnesses were interested in Sidhanti. Even if this view about the evidence of these three witnesses is accepted, the evidence led on behalf of Daulta of witnesses Sukhi Ram, Ramdhari Balmiki is wholly unreliable and the testimony of police constable Roop Ram is also not such that implicit reliance can be placed upon it.

We are unable, therefore, to agree with the High Court in the conclusion it has reached that it had been proved satisfactorily that Om flag was flown at Majra Dubaldhan where Sidhanti and other speakers delivered peeches in furtherance of the election campaign.

The only other meeting at which it is found by the High Court that the Om flag was used in the meeting at Rohtak town on February 4, 1962, which town, it is common ground, is not within the Jhajjar parliamentary constituency from which Sidhanti and Daulta were contesting the election.

It is, however, said that Rohtak suburban area is within the Jhajjar parliamentary constituency and as there is a grain market in Rohtak town and a large number of voters from the Jhajjar constituency assemble in that town a meeting was held by Sidhanti in which Om flag were exhibited.

The witnesses in support of the case of Daulta are Ram Nath Sapra, Dafedar Singh, K. K. Katya! and Satyavrat Bedi. The principal witnesses who were examined by Sidhanti in respect of this meeting were Piare Lal, Bharat Singh, Budh Dev.

Prof. Sher Singh and Bhagwan Dev.

5~•h J.

Shah J.

Ram Nath Sapra who is a correspondent of several newspapers deposed that he had attended the meeting at Rohtak town at Anaj Mandi 10 or 12 days before the actual polling. According to the witness there was a big procession taken out before the meeting which carried flags either of the symbol of the 'Rising Sun' or of 'Orn', that he had made reports about the proceedings of the Rohtak meeting and had sent the report of the same to all the five papers of which he was the correspondent. The Tribunal was of the view that the testimony of the witness was unreliable, because he did not remember the details of any other meeting convened by the other parties, and that he could not speak about the names of the speakers who took part in the meeting convened by the Hariana Lok Samiti.

The testimony of the witness therefore was "far from convincing" and the testimony of Sidhanti, Piare Lal, Bharat Singh, Budh Dev, Prof. Sher Singh and Bhagwan Dev was more reliable.

In corning to the conclusion that the evidence of the witness was unreliable the Tribunal referred to the details given in Sch. 'D' annexed to the petition under the heading 'Summary of the meetings' and observed that the summary was at "complete variance" with the testimony of the witness. The High Court was of the view that the witness Ram Sapra was "wholly disinterested" and therefore his evidence must be accepted. The High Court did not refer to the infirmities disclosed in the testimony of the witness, particularly the discrepancies between the statement of Dauila in his petition and the testimony given by this witness.

Witness Dafedar Singh who is a police constable said that he had been deputed to report about the proceedings of the meeting.

His version is, also different from the version as given in Sch. 'D' annexed to the petition.

The High Court has not referred to the testimony of this witness in support of its conclusion and nothing more need be said about him.

K. K. Katya! said that he had attended the meeting at Rohtak town as a special correspondent of the Hindustan Times, Delhi and that he recollected that flags with a symbol of 'Orn' inscribed thereon were seen flying on some

6 S.C.R.

SUPREME COURT H.EPORTS

vehicles but it was not possible for him to say who owned those vehicles, but from the flags and placards carried on the vehicles it appeared that they were of the Hariana Lok Samiti. He also deposed that he had gone to the office of the Hariana Lok Samiti at Rohtak and saw a similar flag flying on the building of the office.

He admitted in crossexamination that he did not visit any office of the Hariana Lok Samiti either at Bahadurgarh or at Sampla as all his attention was confined to the central office of the Hariana Lok Samiti at Rohtak.

He also stated that he had seen some shopkeepers in Samp1a and Bahadurgarh flying Om flags on their stalls. In the view of the Tribunal the testimony of this witness was vague and no reliance could be placed thereon.

While generally agreeing with this view, the High Court observed that the testimony of the witness Katya! that the Om flag was flying at the office of the Hariana Lok Samiti at Rohtak which was the headquarters ofhce and In the procession which was led by Bharat Singh

a number of Om flags were seen may be accepted.

Satyavrat Bedi who is staff correspondent of the Indian Express stated that during his survey of the election campaign he visited Sampla, Bahadurgarh and Rohtak in one day, and made his report about his observations to the newspaper Indian Express, in which he had recorded that religious synibols and religion were being frequently used for damaging the chances of success of Daulta, that he had seen a large number of flags fluttering on many house tops. that the flag on the office of the Hariana Lok Samiti was that of Om and the other organisations had their own flags, that he saw the Om flag fluttering on the office of Sidhanti at Sampla but he did not remember whether there was any flag of 'Om' at his election office at Bahadurgarh.

The Tribunal declined to accept this testimony. The High Court took a different view and observed that apart from any other infirmity regarding the use of the reports made by the witness, the statement made by him about his observation that he had seen the Om flag flying on the office of the Hariana Lok Samiti and on the motor-vehicle of Bharat Singh could not be ruled out: It must be remembered however that we are concerned at this stage with the

Shah J.

Jar; dev s; nh •• Pratap Sinpb

Shah J.

question whether in the meeting at Rohtak on February 4,

1962. Om flags were exhibited. On that part of the case the evidence of Satyavrat Bedi is not of much use .

Sri Ram Sharma was a candidate for election on behalf of a political party called "the Hariana Front". He deposed that he had never attended any procession or meeting organised by the Hariana Lok Samiti but he had seen the motorvehicles employed by the Hariana Lok Samiti carrying Om flags which were used by the candidates of the Hariana Lok Samiti. He stated that he contributed a number of articles to Hariana Tilak, Rohtak, founded by him in which he had published on January 4, 1962, an article condemning the use of the Om flag for the purpose of elections. The article published on January 4, 1962, can have no bearing on the use of the flag at Rohtak in the meeting dated February 4, 1 \162.

The High Court did not place any relian1,-e upon the testimony of this witness.

This is all the evidence on behalf of Daulta to which our attention was invited by counsel for the parties that at the meeting at Rohtak on February 4, 1962, Om flags were exhibited and appeals were made to the flag as a religious symbol.

Apart from the general infirmity of the testimony, the Tribunal refused to accept the evidence of the witnesses on the ground that their statements considerably departed from the summary given in Sch. 'D' by the petitioner Daulta himself. In view of this inconsistency between the evidence given in Court and the allegations made by the applicant Daulta in the petition, it would be difficult, after discarding the evidence with regard to a very large number of meetings, to bold that in the meeting at Majra Dubaldhan which was within the constituency and in the meeting at Rohtak town which was outside the constituency, Om flags were displayed or appeals were made in the name of the Om flag to further the prospects of the election of Sidhanti.

We are, therefore, unable 'to agree with the conclusion of the High Court that the Om flag was used for election purposes at the time when election speeches were delivered by Sidhanti at Majra Dubaldhan or Rohtak town or that the Om flag was used on the pandals at those meetings.

6 S.C.R.

SUPREME COURT KEPORTS

Two other matters which have a bearing on the use of the Om flag in the course of the election campaign by Sidhanti, and on which the High Court has relied may be referred to. The High Court has found that Sidhanti used the office of the Hariana Lok Samiti at Rohtak town as his election office, but on this part of the case our attention has not been invited to any definite evidence which directly supports this conclusion. The High Court merely observed that it was common ground that Sidhanti did not have any office of his own at Rohtak, and inferred from that circumstance that Sidhanti was using the office of the Hariana Lok Samiti for the election campaign. But the interence in the face of the evidence not justifiable, especially when Rohtak town was not within the constituency.

It was conceded by Sidhanti that Bhagwan Dev Sharma an Arya Samaj leader had been accustomed for many years past to carry on his motor-vehicle a pennant bearing the Om mark and his name. Witness Bhagwan Dev Sharma stated that he had attended the meetings of the Hariana Lok Samiti and had addressed them because he agreed with their ideology and thought that the institution was for the benefit of the Hindu religion, that he had never been asked to remove the Om flag from his jeep when he reached those meetings and that he had not attended those meetings either on account of Prof. Sher Singh or Sidhanti but "in his independent capacity as a citizen of India having a right to

vote", and that he approved of the candidature of Sidhanti in preference to that of his opponent.

But if the witness wa> accustomed to use a pennant with Om mark on it for many years past, m the absence of clear evidence to show that he was an agent of Sidhanti or that he acted with the consent of Sidhanti and made an appeal to the flag, it would be difficult to hold from the circumstances that during the days of the election campaign the witness did not remove the flag from the motor-vehicle, that S1dhanti made an appeal to the electorate by using a religious symbol to further his prospects at the election. The evidence about the user of the Om !lag by Bharat !singh when he is alleged to have taken out a pr()l;; eSSion does not appear to be reliablr..

19M

Jagdev Singh •• Pratap 5ingh

Shah J.

• 1961

Shah l

On a careful survey of the testimony of the witnesses we are unable to agree with the conclusions recorded by the High Court that:

(a) Sidhanti "had used an office of the Hariana Lok

Samiti on which the "Om flag" was flying for election purposes and further that he gave election speeches at a panda/ where the Om flag was fluttering in furtherance of his prospects at the election";

<h) "the agents and supporters delivered speeches about the "Om flag" at the meeting held at Majra Dubaldhan on January 19. 1962, that Piare Lal Bhajnik sang a song, the purport of which was that the honour of the Om flag should be upheld"; and ( c) "the Hariana Lok Samiti, the party to which Sidhanti belonged, was using the Om flag for the purpose of election campaign", and thereby committed corrupt practices. It is true that the use of the Om flag by Bhagwan Dev on his conveyance is admitted but that again is for reasons already set out not sufficient to enable the Court to hold that it was for the purpose of furthering the pro&pects of election of Sidhanti.

In considering whether appeals were made to the electorate to vote for Sidhanti on the ground of his language or to refrain from voting for Daulta on the ground of Danita's language, it is necessary in the first instance lo ascertain the true meaning of the expression "on the ground of his language". By s. 123 (3) which was introduced for the first time in its present form by Act 40 of 1961, appeal by a candidate or his agent to vote or refrain from voting for a person on the ground of language is made a corrupt practice.

This clause must be read in the light of the fundamentai right which is guaranteed by Art. 29(1) of the Constitution, for in ascertaining the true meaning of the corrupt practice, the area of the fundamental right of citizen must be steadily kept in view. The clause cannot be so read as trespassing upon that fundamental right.

Art. 29(1) provides: "Any section of the citizs residing in the territory of India or any part thereof having a distinct

language, script or culture of its own shall have 1961 the right to conserve the same." Jagdev Singh ..

The Constitution has thereby conferred the right, among Pratap Singh others, to conserve their language upon the citizens of India.

Shah J.

Right to conserve the language of the citizens includes the right to agitate for the protection of the language. Political agitation for conservation of the language of a section of the citizens cannot therefore be regarded as a corrupt practice within the meaning of s. 123(3) of the Representation of the People Act.

That is clear from the phraseology used in s. 123(3) which appears to have been deliberately and carefully chosen.

Unlike Art. 19(1), Art. 29(1) is not subject to any reasonable restrictions. The right conferred upon the section of the citizens residing in the territo_ry of India or any part thereof to conserve their language,

cript or culture is made by the Constitution absolute and therefore the decision of this Court in J umuna Prasad Mukhariya and others v. Lachhi Ram and others(') on which reliance was placed by the High Court is not of much use. In that case ss. 123(3) and 124(5) of the Representation of the People Act as they then stood were challenged as infringing the fundamental freedom under Art. 19 (1 )(a) of the Constitution, and the Court in negativing the contention held that the provisions of the Representation of the People Act did not stop a man from speaking: they merely prescribed conditions which must be observed if a candidate wanted to enter Parliament. The right to stand for an election is, it was observed, a special right created by statute and can only be exercised on the conditions laid down by the sta'tute, and if a person wants to stand for an election he must observe the rules. These observations have no relevance to the protection of the fundamental right to conserve language. The corrupt practice defined by cl. (3) of s. 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate's language.

It is the appeal to the electorate on a ground personal to the candidate relaiing to his language which attracts the ban of s. 100 read with s. 123 ( 3). Therefore it is only when the electors are asked lo vote or not to vote because of the

(!) [1955] I S.C.R. 608.

136-159 S.C.-49

196f

Jagdtv Singh 'f, Pratap Singh

Shah J.

particular language of the candidate that a corrupt practice may be deemed to be committed. Where however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.

It is in the light of these principles, the correctness of the findings of the High Court that Sidhanti was guilty of the corrupt practice of appealing for votes on the ground of his language and of asking the voters to refrain from voting for Daulta on the ground of the language of Daulta may be examined.

The petition filed by Daulta on this part of the case was vague. In paragraph 11 of his petition it was averred that Sidhanti and his agents made a systematic appeal to the audience to vote for Sidhanti and refrain from voting for Dauila "on the ground of religion and language'', and in paragraph 12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the electorate to vote for him and refrain from voting for Dauila "on the ground of his religion and language". A bare perusal of the particulars of the corrupt practice so set out in paragraphs 11 & 12 are to be found in

Schs. 'C' & 'D' clearly shows that it was the case of Dau!ta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meeting:..

It is stated in Sch. 'D' that resolutions were passed at the meetings urging upon the Government to 'abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the: ground of language of the candidate or to refrain from voting on the ground of language of tl1e contesting eanilidate.

Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a ipo!itical campaign and the passions which are generally aroused in such a campaign. In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the' text of the speech in the serene atmosphere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible. A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meeting disclosed nothing more than a tale of politi ta! promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.

It is not disputed that in 1957 there was a wide-spread agitation in the State of Punjab agaiiist the enforcement of the education policy of the State, incorporated in the "Sachar formula". Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them. But the movement was not and could not be declared illegal. It is common ground that in the Hatiana region, Hindi is the predominant language of the people and if a section of the

people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice.

It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people.

The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign.

Thereby it could not be said that the voters were asked not to vote for Daulta on the i:round of his language, assuming that it was other than

Jagdtv Sill611 ...

Pratap Singh

Sita~ J.

IHI Hindi. Nor can it be said that it was an appeal to tho voters ,.,.., Slnth to vote for Sidhanti on the ground of his language . ..

Pralap Singh

Slooli J.

The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December IO, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs.

The speeches made at the meetings at Sarnpla, Ladpur and Majra Dubaldhan read like political harangues addressed to the electorate to vote for the candidate who would protect the language of the people of Hariana. At Bahadurgarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement.

The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language.

The criticism by Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policyof the Government and wa:s not personally directed against him. Nor did Sidhanti appeal to the voters to vote in his favour on account of his language.

Such political speeches espousing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language poHcy is not a corrupt practice within the description of corrupt practice under s. 123 ( 3) of the Act.

We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under s. 123 (3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Dauila on the ground of his language.

The appeal will therefore be allowed and the order passed by the Tribunal restored with costs in this Court and the High Court.

A pp1al allowed.

JAGDEV SINGH SID.'IANTI

PRATAP SINGH DAULTA

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

GUPTA J

C. SHAH

N. RAJAGOPALA AYYANGAR

Representation of the People Act, 1951

s. 123

People Act, 1951

s. 123

s. 123

Art. 29(1)

Art. 29(1)

s. 123(3)

s. 123

s. 100

s. 123("l)

CIVIL APPELLATE JURISDICTION

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

Purshotham Trikamdas

Rajinder Nath Mitta/

R. B.

Datar

V. Kumar

B. P. Singh

Naunit Lal

G. S. Pathak

Bawa Shiv Charan Singh

Hardev Singh

f{ajendra Dhawan

Anand Prakash

Y. Kumar

Pratop Singh

196l41dtv Sii:ll v.

Pratop Singh

kgdeY

February 12, 1964.

Shah

SHAH

Jagdev Singh Sidhanti

Pratap Singh Dauila

SLcJhanti

Daulta

Sidhanti

Piare Lal Bhajnik

Badlu Ram

Rudh Dev

Sher Singh

Mahashe Bharat Singh

Acharya Bhagwan Dev

Punjab

Hariana

Sidhantt

February 18. 1962

Sidhanti

Hariana Lok Samiti

Hariana Lok $qmiti

Arya Samaj

Bhgwan Dev

Bhagwan Dev

Government of Punjab

s. 123

Representation of the People Act, 1951

Daulta

High Court of Judicature for Punjab

Sampla

Rohtak

Sidhanti "Bharat Singh

Majra Dubaldhan

January 19, 1962

Rohtak town

s. 123(3)

State of Punjab

Jagtkv Singh

Shah J.

Shah

s. 123

Representation of the People Act 1951

India

Dauila

Sidhanti's

Section 100(1)

Jagdev Singh

Pratap Singh

Shah J.

JQld" Singh

.hah

Section 123

s. 123(3)

s. 100

s. 123(3)

Daulta

Macdonell

Monier-William

December 10, 1961

February 18, 1962

Sidhnti

Beri

Barhana

Dighal

Akheri Madanpur

Sarnpla

Ladpur

Pakasma

Assaudha

Jhajjar

Dulehra

Sisana

Bahadurgarh

February 4, 1962

Assaudha

Badli

Sisana

Bahadurgarh

Majra Dubaldhan

Roop Ram

The witnesses for Daulta were Roop Ram, Sukhi Ram and Ramdhari Balmiki.

Sukhi Ram

Ramdhari Balmiki

Piare Lal

Sher Singh

Jug Lal

Piare Lal

Nanhu Ram

Badlu Ram

Jagdev Singh Sidhanti

Bhagwan Dev

Ramdhani Balmiki

Attar Singh

Ganesh Dass

Sidhanti

lagdev Singh

hah

Sukhi Ram

Dubaldhan Panchayat

Hariana Lok Sarniti

Ma jra Dubaldhan

Election Commission

Ram Nath Sapra

Dafedar Singh

K. K. Katya

Satyavrat Bedi

Bharat Singh

Budh Dev

Ram Nath Sapra

Sidhanti

Bharat Singh

Ram Sapra

K. K. Katya

Hindustan Times

Delhi

Katya

Satyavrat Bedi

Om

Pratap Sinpb

February 4,

1962

Ram Sharma

Hariana Tilak

January 4, 1962

February 4, 1 \162

Bhagwan Dev Sharma

Bhagwan Dev Sharma

Bharat !singh

Jagdev Singh

Danita

s. 123

Art. 29(1)

Art. 29(1)

Jagdev Singh

Pratap Singh

s. 123(3)

Representation of the People Act

s. 123(3)

Art. 19(1)

Art. 29(1)

ss. 123(3) and 124(5)

Representation of the People Act

Art. 19

Representation of the People Act

Parliament

s. 123

s. 100

s. 123

Jagdtv Singh

Dau!ta

Hatiana

Sita~

Pralap Singh

Slooli

Harphul Singh

s. 123

s. 123


fi S.C.R.

SUPREME COURT REPORTS 773

HIRALAL PRABHUBHAI AND OTHERS

NAGINDAS ATMARAM KHATRI

IK. SUBBA RAo AND J. R. MUDHOLKAR JJ.)

Bombay T<nancy Agricultural Lands Act (Bom. LXV/l of 1948), ss. 88 and 89-Suit for eviction-Agricultural land within two miles of the limir.r of Municipalily-Applicubility of Act.

'fhe respondent gave aotice to the appellants terminating the lease of agricultural land situated within two miles of the limits of the Municipality and filed a suit for eviction. The suit was contested, inter alia, on the ground that under the provisions of the Bombay Tenancy Act, 1939, the defendants had acquired tenancy rights.

The civil Judge, inter alia, held that the 1939 Act was repealed by the Bombay Tenancy and Agricultural Land Act, 1948, which did not apply to the suit land, as it was within two n1iie~ of the limits of the Surat Borough Municipality and decreed the suit.

On appeal, the District Judge held that the 1948 Act applied to the Suit land and set aside tpe decree of the trial Court.

In second appeal by the plaintiff, the High Court held that the suit land was within two miles of the limit:. of the Municipality and therefore, the 1948 Act did not :.tppJy to the suit land. On appeal by Special Leave the appellants contended that their rie; hts under the 1939 Act were saved and preserved under s. 89(2) of the 1948 Act with the result that the lease extended to IO years under the 1939 Act was saved thereunder, and by reason of the Bombay Tenancy and Agricultural Lands (Amendment} Act, 1952, which brought the suit land within the scope of the 1948 Act, their rights so preserved came to be governed by the provisions of rhe 1948 Act and, therefore, they could not be evicted except in the manner prescribed tiy the provisions of the Act. The respondent contended that

the savin& provi•ion in s. 89(2) of the 1948 Act operates only if there is no express provision to the contrary and that the saving of the appellant'• right would be otiose, as he could not enforce his right under the 1948 Act.

Held: (i) Before the suit was disposed of, the 1952 Act came into force, and by reason of the extension of the 1948 Act to the suit land, the respondent could not evict the appellants except in the manner prescribed by the 1948 Act.

(ii) The respondent's contention must be rejected.

There is an express provision found in s. 88(1) of the 1948 Act, in as much as it says that the provisions of ss. 1 to 87 will not apply to the area in question.

(iii) As there was a right recognized by law there was a remedy and, therefore. in the absence of any special provisions indicating a

l!lfl

Febrw,., If.

1961 particular forum for enforcing a particular right the general law of the HINlalP bh land would naturally take its course. The High Court. therefore, was bhai ra U• wrong in holding that the appellants could not claim the benefit of the "· provisions of the 1948 Act.

NagindtU .A.Ima. ram.

Sakharam (a) Bapusaheb Nara)'an Sanos v. Manikchand Morichand Shah [1962] 2 S.C.R. S9, relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 120/62.

Appeal by special leave from the judgment and decree dated April 23, 1959, of the former Bombay High Court in Second Appeal No. 1359 of 1955.

M. S. K. Sastri and M. S. Narasimhan, for the appellants.

0. C. Mathur, I. B. Dadachanii and Ravinder Narain, for the respondent.

February 14, 1964.

The Judgment of the Court was delivered by

'llubba Rao 1. 'SuBBA RAo J.-This appeal by special leave raises the question of the applicability of the Bombay Tenancy and Agricultural Lands Act. 1948 (Born. Act No. 67 of 1948), hereinafter called the '1948 Act', to the tenancy of the land in dispute.

The appellants are the legal representatives of one Prabhubhai Ratanji. The suit property is agricultural land situate within two miles of the limits of the Surat Municipal Borough. It was rpart of the erstwhile Sachin State.

On May 7, 1946, Nagindas Atmaram Khatri, the respondent herein, who was the owner of the said land, gave a lease of the same in favour of the said Prabhubhai Ratanji for a period of six years.

On July 28, 1948, Sachin State became part of the State of Bombay. From that date the Bombay Tenancy Act, 1939, heremafter called the "1939 Act", was made applicable to the said area.

On April 23, 1951, Nagindas Atmaram Khatri, the landlord, gave a notice to the defendant terminating the lease from March 31, 1952.

After givfog the said notice, he filed Reg. Suit No. 403 of 1952 in the Court of the Subordinate Judge, Surat, for eviction of the lessee Parbhubhai Ratanji.

The suit was contes.ted on various grounds, the main contention being that under the provisions of the 1939 Act, the defendant

had acquired tenancy rights therein. As the defendant died on September 30, 1955, his legal representatives were Hlralal Prabhu brought on record in his place. The learned Civil Judge, bhal inter alia, held that the 1939 Act was repealed by the 1948 Nagindu•· Allfllloo Act and that the latter Act did not ply to the suit land, ram as it was within two miles of the limits of the Surat Borough subba Rao J.

Municipality. On that finding, he gave a decree for possession, arrears of rent and mesne profits. Against the said decree, the defendant preferred an appeal to the District Judge.

The learned District Judge held that the landlord failed to prove that the suit property was within a distance of two miles of the limits of the Surat Borough Municipality and, on that finding, he came to the conclusion that the 1948 Act applied to the suit land and set aside the decree of the trial court awarding possession to the plaintiff, but maintained the decree for arrears of rent. Thereupon, the plaintiff preferred a second appeal to the High Court insofar as the decree of the District Court went against him. The said appeal came up before a Division Bench of that High Court. The High Court held that the suit land was within two miles of the limits of the Surat Borough Municiipality and that, therefore, the 1948 Act did not apply to the suit land.

On that finding, it set aside the decree passed by the learned District Judge and restored that passed by the learned Civil Judge. The legal representatives of the defendant have preferred the present appeal.

Learned counsel for the appellants contended that the High Court should have held that tbe rights of the pellants under the 1939 Act were saved by the 1948 Act. He contended broadly that the right of the appellants under the 1939 Act were preserved under s. 89(2) of the 1948 Act, with the result that the lease extended to 10 years under the 1939 Act was saved thereunder, and that by reason of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1952 (Born. Act 33 of 1952), hereinafter called the "1952 Act'', which brought the suit land within the scope of the 1948 Act, their rights so preserved came to be governed by the provisions of the 1948 Act and, therefore, the respondent could not evict them except in the manner prescribed by the provisions of that Act.

196# To appreciate the contentions of the parties it is neces fi1ralal-Prabhusary to trace briefly the history of the relevant provisions. bhai Section 23 ( 1 ) of the 1939 Act, as amended by the 1946 Naginda:· Atma- Aot, read : ram

Subba Rao I "(a) No lease of any land situated in any area in which this section comes into force made after the date of the coming into force of this section in such area, shall be for a period of less than

10 years; and

(b) every lease subsisting on the said date or made after the said date in respect of any land in such area sha!J be deemed to be for a period of not less than l 0 years."

The 1939 Act was repealed by the 1948 Act. Section 88 ( 1) of the 1948 Act, as it stood before the amendment by the

1952 Act, read:

"Nothing in the foregoing provisions of this Act shall apply-

{ a)

(b)

( c) to any area within the limits of Greater Bombay or within the limits of the Municipal Borough of. ..... Surat. ; .... and within a distance of 2 miles of the limits such boroughs."

Section 89 thereof read :

"(I ) The enactment specified in the schedule is

hereby repealed to the extent mentioned in the fourth column thereof.

(2) But nothing in this Act or any repeal effected thereby-

( a)

(b) shall save as expressly provided in this Act affect or deemed to affect,

( i) any right, title, interest, obligation or liability already acquired, accrued or Hiralal Pro,..,._ incurred before the commencement hhal

V, of this Act; ........ ".

Nagindas

A.-

SCHEDULE I

-~-·------- ----------------

Year No.

Short Title Extent of repeal

1 2 3 4 -----------------------

XXIX The Bombay Ten- The whole except sections ancy Act, 1939. 3, 3-A and 4 as modified in the following manner . ..

~--------------------- Section 88 of the 1948 Act was amended by the 1952 Act.

The relevant part of the amended section reads :

" ( I) Nothing in the foregoing provisions of this Act shall apply-

( a)

(b)

( c) to any area within the limits of Greater Bombay within the limits of the Municipal Corporations constituted under tli.e Bombay Provincial Municipal Co!ipOration Act, 1949, within the limits of the Municipal Boroughs constituted under the Bombay Municipal Boroughs Act, 1925, and within the limits of any cantonment; ......... ".

The gist of the provisions in their application to a lease of agricultural land situated within two miles of the limits of the Surat Borough Municipality may be stated thus : Such a lease subsisting on the date of the amending Act of 1946, which came into force on April 11, 1946, shall be deemed to be for a period of not less than I 0 years. The 1939 Act was repealed by the 1948 Act. Under s. 88(1) (c)

ram

Subba Rao I.

t06f ot the 1948 Act, the provisions of that Act were not applic- Rirt11al-Prt1bhu able to any area within the municipal limits of the said

bhal borough of Surat and within a distance of two .miles of the Nailnd.;· Atma limits of the said borough; but the right, title and interest

•am of a lessee in such area was preserved under s. 89(2) (b) (i)

.ubba Rao 1. of the said Act.

Section 8 8 ( 1) of the 1948 Act, among other things, was amended by the 1952 Act, which came into force on January 12, 1953.

By the said amendment the 1948 Act was extended to any area within a distance . of two miles of the limits of the Surat Borough Municipality.

With the result. all the provisions of the 1948 Act would be applicable to a lease of agricultural land subsisting in such an area after the amendment came into force. If so, . such a lease can be terminated only in the manner prescribed by s. 14 thereof.

What is the effect of this legal position on the facts of the present case? The relevant facts on which there is really no dispute may now be stated.

The lease deed between the appellants' predecessor and the respondent w:is executed on May 7, 1946, for a period of six years commencing from May 3, 1946; that is to say,

it would expire in the ordinary course on May 2, 1952.

Sachin State became part of the Bombay State from July 28.

1948. After it became part of the Bombay State, the 1939 Act, as amended by the 1946 Act, was extended to that State; with the result the lease which would have expired in May 1952 was statutorily extended by another 4 years, that is, till May 1956. On December 28, 1948, the 1948 Act came into force.

That Act repealed the 1939 Act. It also exempted the lands within , the limits of the Surat Borough Municipality and also lands within two miles of the limits of the said Municipality from the operation of the provisions of the said Act.

But, it saved the right or interest of the lessee which he had acquired under the 1939 Act. When the 1952 Act came into force on January 12,

1953, the said lease, protected under the saving clause, was subsisting. By the said amendment, the 1948 Act was made applicable to the land in question which is within two miles of the limits of the Surat Borough Municipality.

With the result, the interest of the appellants could be terminated

6 S.C.R.

SUPREME COURT RI<; P(JRTS 779

only under s. 14 of the 1948 Act. On April 23, 1951, the respondent gave a notice to the appellants terminating the Hiralal Prabhulease from March 31, 1952, and filed the suit for eviction bliai .. on April 21, 1952. But before the suit was dis.posed of, the Nagindas At,,,... 1952 Act came into force, and by reason of the extension ram of the 1948 Act to the said land, ¢he respondent could not Subba Rao J. evict the appellants except in the manner prescribed by the 1948 Act. The High Court, therefore, was wrong in holding that the appellants could not daim the benefit of the provisions of the 1948 Act

At this stage another argument advanced by learned counsel for the respondent may also be noticed. The argument is that the saving provision in s. 89 (2) operates only if there is no express provision to the contrary, but such an express provision is found in s. 88 (1), inasmuch as it says that the provisions of ss. 1 to 87 will not apply to the area in question.

It is further contended that the saving of the appellant's right would be otiose, as he could not enforce his right under the Act. . A similar argument was advanced but was repelled by this Court in Sakharam alias Bapusaheb Narayan Sanas v.

Manikchand Motichand Shah ( 1 ).

There the lands in dispute were situ3!te within two miles of the limits of the Poona Municipal Borough.

The question was whether the rights of the appellants as protected tenants were affected by the repeal. This Court held that the provisions of s. 88 ( 1) were entirely prospective and that they applied to lands of the description contained in the said Set"tion from the date on which the Act came into force and that they were not intended, in any sense, to beof confiscatory character. When it was further contended that the right would be illusory, as it could not be enforced under the Act, this Court pointed out that as there was a right recognized by law there was a remedy and, therefore,_ in the absence of any special provisions indicating a particular forum for enforcing a particular right the general law of the land would naturally take its course.

This decision is binding on us. We, therefore, reject this contention.

----···---

l I) [1962] l S.C.R. 59.

IPM Even so, learned counsel for the resflondent contended Hiralal-Prabhuthat in the view taken by the High Court it had become bhai unnecessary for it to give its findings on two of the important Nagind:· Atmaissues that arose in the case, namely, issues 3 a.'!d 4, which ram are as follows :

Subba Rao J.

Issue 3. Whether the plaintiff proves that he wants

February 14.

possession for bona fide personal cultivation.

Issue 4. Whether the defendant proves that he had not damaged the suit property in view of the decision in Reg. C. Suit No. 619 of 1950 by the Joint Civil Judge (J.D.J, Surat;

He, therefore, pointed out that the matter would have to be remanded to the High Court for its decision on the said two points.

In view of the supervening circumstances, it is not possible to accede to this argument. As pointed out earlier, on April 23, 1951, the respondent issued the notice on the ground that the tenancy of six years would expire on March 31, 1952. But by reason of the 1939 Act the tenancy was statutorily extended till 1956. So the said notice had become ineffective and the respondent would not be entitled to any relief on its basis.

It would be open to him to take any appropriate proceedings, which the law allows, m a proper tribunal. In the circumstances the only course open to us is to set aside the decree of the High -Court and to restore that of the Dirstict Judge. The parties will bear their respective costs throughout.

Appeal allowed.

S. M. KARIM v.

MST. BIBI SAKINA

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

Benami Transaction-Protection under s. 66-lf available to transfertt-

Sub-s. (2) applies to creditors-Suit for adverse possession, if lie.r- Code of Civil Procedure, 1908 (Act 5 of 1908), •· 66.

773

HIRALAL PRABHUBHAI AND OTHERS

NAGINDAS ATMARAM KHATRI

IK. SUBBA RAo

R. MUDHOLKAR JJ.

Agricultural Lands Act

ss. 88 and 89

Bombay Tenancy Act, 1939

Surat Borough Municipality

s. 89(2)

s. 89(2)

s. 88(1)

ss. 1 to 87

M. S. K. Sastri

M. S. Narasimhan

C. Mathur

I. B. Dadachanii

Ravinder Narain

'llubba Rao

SuBBA RAo

Prabhubhai Ratanji

Surat Municipal Borough

May 7, 1946

Nagindas Atmaram Khatri

July 28, 1948

Sachin State

State of Bombay

April 23, 1951

Nagindas Atmaram Khatri

Subordinate Judge, Surat

Parbhubhai Ratanji

September 30, 1955

Hlralal Prabhu

Allfllloo Act and that the latter Act

subba Rao

Surat Borough Municiipality

s. 89(2)

Section 23

Subba Rao

Section 88

Section 89

Section 88

Oration Act, 1949

April 11, 1946

s. 88(1)

Subba Rao

Surat

s. 89(2)

.ubba Rao

Section 8

January 12, 1953

s. 14

May 3, 1946

May 2, 1952

Sachin State

July 28.

1948

December 28, 1948

Surat Borough Municipality

January 12,

1953

s. 14

April 21, 1952

s. 89

s. 88

ss. 1 to 87

Poona Municipal Borough

s. 88

Hiralal-Prabhuthat

M. HIDAYATULLAH

RAGHUBAR DAYAL

s. 66

Code of Civil Procedure, 1908


SUPREME COURT REPORTS

IPM Even so, learned counsel for the resflondent contended Hiralal-Prabhuthat in the view taken by the High Court it had become bhai unnecessary for it to give its findings on two of the important Nagind:· Atmaissues that arose in the case, namely, issues 3 a.'!d 4, which ram are as follows :

Subba Rao J.

Issue 3. Whether the plaintiff proves that he wants

February 14.

possession for bona fide personal cultivation.

Issue 4. Whether the defendant proves that he had not damaged the suit property in view of the decision in Reg. C. Suit No. 619 of 1950 by the Joint Civil Judge (J.D.J, Surat;

He, therefore, pointed out that the matter would have to be remanded to the High Court for its decision on the said two points.

In view of the supervening circumstances, it is not possible to accede to this argument. As pointed out earlier, on April 23, 1951, the respondent issued the notice on the ground that the tenancy of six years would expire on March 31, 1952. But by reason of the 1939 Act the tenancy was statutorily extended till 1956. So the said notice had become ineffective and the respondent would not be entitled to any relief on its basis.

It would be open to him to take any appropriate proceedings, which the law allows, m a proper tribunal. In the circumstances the only course open to us is to set aside the decree of the High -Court and to restore that of the Dirstict Judge. The parties will bear their respective costs throughout.

Appeal allowed.

S. M. KARIM v.

MST. BIBI SAKINA

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

Benami Transaction-Protection under s. 66-lf available to transfertt-

Sub-s. (2) applies to creditors-Suit for adverse possession, if lie.r- Code of Civil Procedure, 1908 (Act 5 of 1908), •· 66.

The appellant K claimed certain property alleging that he had purchased it from one A, who had purchased it benami in the name of one H, and H in turn had sold it to S the respondent.

Held: (i) The protection available by s. 66 of the Code of Civil l'rocedure is not only against the certified purchaser but atso against anyone claiming through him and s. 66 bars the claim.

The second sub-section refer to the claims of creditors and not of transferees, 'vhich is dealt with in the first sub-section.

(ii) If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he ..::an sue to olS'tain possession, for he does not then rely on th'.::: benan1i nature of the transaction.

But the alternative claim must be clearly made and proved.

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

Sukan v. Krishnand, l.L.R. 32 Pat. 352, Sri Bhagwan Sbigh v. Ram Basi Kuer, A.J.R. 1957 Pat 157 and Bishun Dayal v. Kesho Prasud, A.l.R. 1940 P .C. 202, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 647 of 1962.

Appeal by special leave from the judgment and decree dated December 3, 1959 of the Patna High Court in Appeal from Appellate Decree No. 642 of 1957.

S. P. Varma, for the appellant.

S. P. Sinha, Shahzadi Mohiuddin and Shaukat Hussain, for the respondent.

February 14, 1964.

The Judgment of the Court was delivered by

Bibi Sakina.

HIDAYATULLAH, J.-This is an appeal by special leave Hidayat•l/ah J. against the judgment of the High Court of Patna reversing the concurrent judgments of the two courts below, and ordering the dismissal of the suit of the appellant.

The appellant is Syed M. Karim, son of one Syed Aulad Ali and the respondent Mst. Bibi Saldna (defendant No. 11) is transferee of the properties in dispute from !fakir Alam (defendant No. 2), son-in-law of Syed Aulad Ali.

The appellant, in his turn, is a transferee of the same properties frpm his father Syed A ulad Ali. ·

J9M

S. M. Karim •.

Bibi Sakina.

Hidayatullah J,

The suit was brought for declaration of atle and confirmation of possession or in the alternative for delivery thereof against several defendants in respect of this and otl1er properties. We are not concerned in this appeal with the other defendants or the oilier properues. This part of the appellant's suit was based on tlle allegation that Syed Aulad Ali had purchased the suit properties on May 28, l914 at a couPt sale, benami in the name of his son-in-law Hakir Alam. The reason for the benami purchase was that under the rules of the Darbhanga Raj where Syed Au!ad Ali was employed, persons serving in certain capacities were prohibited from purchasing at court sales. The sale certificate was issued in the name of Hakir Alam who was then living with Syed Aulad Ali.

On January 6, 1950, Syed Aulad Ali sold the property to his son the present appellant and Hakir Alam sold the property in his turn to Bibi Sakina and the present suit was filed for the above reliefs.

In this appeal, it has been stressed by tlie appellant that lhe findings clearly establish the benami nature of the transaction of 1914.

This is, perhaps, true but the appellant cannot avail himself of it. The appellant's claim based upon the benami nature of the transaction cannot stand because s. 66 of the Code of Civil Procedure bars it. That section provides that no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of someone through whom the plaintiff claims. Formerly, the opening words were, no suit shall be maintained against a certified purchaser. and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court.

The protection is thus available not only against the real purchaser but also against anyone claiming through him. In the present case, the appellant as plaintiff was hit by the section and the defendants were protected by it.

It is contended that the case falls wi.thin tlie second subsection under which a suit is possible at the instance of a third person who wishes to proceed against the i; iroperty. though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person

6 S.C.R.

SUPREME COURT F.EPORTS

against the real owner. Reliance is placed upon the transfer by Syed Aulad Ali in favour of the appellant which is described as a claim by the transferee against the real owner.

The words of the second sub-section refer to the claim of creditors and not to the claims of transferees.

The latter are dealt with in first sub-section, and if the meaning sought to be placed on the second sub-section by the appellant were to be accepted, the entire policy of the law would be defeated by the real purchaser making a transfer to another and the first sub-section would become almost a dead letter.

In our opinion, such a construction cannot be accepted and the plaintiff's suit must be held to be barred under s. 66 of the Code.

As an alternative, it was contended before us that the title of Hakir Alam was extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and after him oI the plaintiff.

The High Court did not accept this case.

Such a case is, of course, open to a plaintiff to make if his possession is disturbed. If the possession of the real owner ripens into title under the Limitation Act and he is dispossessed, he can sue to obtain possession, for he does not then rely on the benami nature of the transaction.

But the alternative claim must be clearly made and proved.

The High Court held that the plea of adverse possession was not raised in the suit and reversed the decision of the two courts below.

The plea of adverse possession is raised here.

Reliance is placed before us on Sukan v. Krishanand(') and Sri Bhagwan Singh and others v. Ram Basi and others(") to sumit that such 1! plea is not necessary and alternatively, that if a plea is required, what can be considered a proper plea. But these two cases can hardly help the appellant. No doubt, the plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continued in possession of the property but it does not say that this possession was at any time adverse to that of the certified purchaser.

Hakir Alam was the son-in-law of Syed Aulad Ali and was living with him.

There is no

(I) I.L.R. 32 Pat. 353.

(2) A.I.R. 1957 Pat. 157.

S. M. Karim

•• Bibi aki11a

Hidayatullah J.

•• Bibi Sakinri

Hidayatullah J.

February 14.

suggestion that Syed Aulad Ali ever aserted any hostile title against him or thitt a dispute with regard to ownership and possession had ever arisen.

Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.

There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea.

Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.

The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in tl1at case.

It is sufficient to point out that in Bishun Dayal v. Kesho Prasad and another [A.I.R. 1940 P.C. 202], the Judicial Committee did not accept an alternative case based on possession after purchase without a proper plea.

Reading the plaint as a whole, we agree with the High Court that a case based on possession after the purchase was not stated in the plaint and the decision of the High Court in the circumstances of this case was therefore proper.

The appeal fails and is dismissed with costs.

Appeal dismissed.

R. L. ARORA

STATE OF UTTAR PRADESH AND OTHERS

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.)

Land Acquisition Act-Acquisition for company engaged in industry for public purpose-Provision if hit by Ari. 31(2) and Art. 19(1) of the Constitution-lnterprttation-Disthiction made be.tween Government companies, Public companies and Prtvatt companie1

Hiralal-Prabhuthat

April 23, 1951

March 31, 1952

MST. BIBI SAKINA

M. HIDAYATULLAH

RAGHUBAR DAYAL

s. 66

Code of Civil Procedure, 1908

s. 66

s. 66

Limitation Act

CIVIL APPELLATE JURISDICTION

S. P. Varma

S. P. Sinha

Shahzadi Mohiuddin

Shaukat Hussain

Bibi Sakina

HIDAYATULLAH

High Court of Patna

Syed M. Karim

Syed Aulad Ali

Bibi Saldna

fakir Alam

Syed A ulad Ali

S. M. Karim

Hidayatullah

May 28, l914

Hakir Alam

Darbhanga Raj

Syed Au!ad Ali

January 6, 1950

Bibi Sakina

s. 66

the Code of Civil Procedure

s. 66

Limitation Act

Hakir Alam Ali

S. M. Karim

Hidayatullah

R. L. ARORA

STATE OF UTTAR PRADESH

P. B. GAJENDRAGADKAR

K. N. WANCHOO

K. C. DAS

C. SHAH

N. RAJAGOPALA AYYANGAR

Land Acquisition Act

Art. 19(1)