NINGAWWA v.

BYRAPPA & 3 ORS.

January 17, 1968.

[J. C. SHAH AND V. RAMASWAMI, JJ.]

Indian Limitation Act (9 of 1908), Arts. 91 and 95-Suit to set aside. gift deed on grounds of undue inffuence and fraud-Period of limitation and starting point for lbnitation.

. .In 1938, the appellant executed a gift deed df four plots of land-two in village T and two in village L in favour of her husband. At that time the appellant was young and illiterate and her husband was in a position to dominate her will, and she believed that the document related only to the plots in villagt T which were originally the property of the husband.

The properties in village L were inherited by the appellant froni her father ..

They were very valuable and fertile and there was no reason whatever for her to gift them away to her husband. In 1941. the husband married a second wife but the appellant continued to live with him amicably till he died in 1949. Thereafter the conduct of the relatives of the second wife made her suspicious, and on enquiry, she found that the plots in village L were also included in the gift deed. She therefore filed a suit for setting aside the gift deed and for possession of all the four items of property, against the second wife and her children.

The High Court, in appeal, dismissed the suit.

In appeal to this Court,

HELD : ( 1) The appellant's husband included the two plots of land in village L in the gift deed by fraud and without the appellant's knowledge.

Since the fraudulent misrepresentation ws with respect to the contents and not the character of the document the transaction was not void-but only voidable.

Therefore, the suit for setting aside the gift deed would be governed by Art. 95 of the Limitation Act, 1908. Since the Article prescribes a period of limitation of 3 years from the time whenthe fraud became known to the party wronged, and the suit in the present case was filed within a few days after the at>Pellant came to know of the fraud, the suit with respect to the items in village L was within time and should be decreed. [800 G; 802 A.C, BJ '

Clough v. L. & N. W. Railway, (1871) LR. 7 Ex. 26; Foster v.

Mackinon ( 1869) 4 C.P. 704, Sanni Bibi v. Siddik Hossain, A.LR. 1919 Cal. 728 and Brindaban v. Dhurba Chc; ran, AJ.R. 1929 Cal. 606, referred to.

(2) As regards the plots in village T, in view of s. 16(3) of the Indian Contract Act, and s, 111 of the Evidence Act the gift deed must be. presumed to have been obtained by the appellant's husband by undue inlluence.

The suit with respect to these properties would tberefore be governed by Art. 91. The period of limitation prescribed by the Article is three years and, time begins to run from the date when the plaintiff discovered the facts entitling the plaintiff to have the instrument cancelled or set aside and not from the date when the plaintiff escaped from the undue inlluence.

Since the appellant in the present case knew at the veiry time of the execution of the gift deed that her husband prevailed upon her to convey the plots in village T to him by undue inftueoce, her suit was barred by limitation so far as he plots in village T ate concerned- [803 A-B, D, Jl,-0] L3 Sup. CJ/68-7

798 SUPREME COURT lll!PORTS

(1968] 2 S.C.R.

Somtshwar D11tt v. Tirbhawan Dutt, 61 I.A. 224, applied.

CIVIL APPELLATF. JURISDICTION : Civil Appeal No. 586 of 1965.

Appeal from the judgment and decree dated July 29, 1960 of the Mysore High Court in Regular Appeal No. (B) 71 of 1956.

K. R. Chaudhuri, for the appellant.

Naunit Lal, for the respondent.

The .ludgment of the Court was delivered by

Ramaswami, J. This appeal is brought, by certificate, from the judgment of the Mysore High Court dated July 29, 1960 in R.A. (B )· 71 of 19~6, whereby the High Court allowed the appeal of the respondents and dismissed the suit of the appellant.

In the suit which is the subject-matter of this appeal the appellant asked for a decree for possession of the properties mentioned in the schedule to the plaint on the ground that she was the owner of the properties in spite of the gift deed, E; r;. 45 executed by her on January 16, 1938.

According to the case of the appellant, plot nos. 91 and 92 of Lingadahalli village were inherited by her from her father and plot nos. 407/1 and 409/1 of Tadavalga village were originally the properties of her husband Sh.iddappa.

These plots had been usufructually mortgaged but they were redeemed from the funds supplied by the appellant and a reconveyance of the two plots was taken in the name of the appellant.

At about the time Ex. 45 was executed it is alleged by the appellant that her husband Shiddappa was dominating her will and persuaded her to execute the gift deed in respect of plots 407/1 and 409/1 of Tadavalga village. The appellant was taken to Bijapur by her husband on _January 16, 1938 and there Ex. 45 was written and she was made to sign it.

The document was registered on January 18, 1938 at Indi. The appellant believed that the document, Ex. 45 related to only plots nos. 407 /1 and 409/1 of Tadavalga village.

She was never told by her husband that the document related either to plot no. 91 or plot no. 92 of Lingadahalli village.

Sh.iddappa died in about the end of December, 1949 and till then she was amicably living with him and consequently she had no occasion to know about the true character of Ex. 45 or about it~ contents. Shiddappa had taken a second wife in the year 1941 and after the death of Shiddappa

in 1949 the relations of the second wife, respondent no. 4, began to assert their rights in respect of the properties of the appellant.

Growing $USpicious of the conduct of the respondents, the appellant made enquiries from the Kamam of the village and found that in Ex. 45 she was purported to have made a gift of properties

.. c

NINGAWWA v. BYRAPPA (Ramaswami, I.) 799

included in plots 91 and 92 of Lingadahalli village to her husband Shiddappa.

Consequently the appellant brought the present suit for possession of properties. Respondent no. 4 is the second wife of Shiddappa and respondents 1 to 3 are the children of Shiddappa through respondent no. 4. They resisted the appellant's suit and contended that the gift deed in favour of Shiddappa, Ex. 45 was valid and that the same was executed voluntarily by the appellant and consequently it was not liable to be set aside. The trial court came to the conclusion that Shiddappa obtained Ex. 45 by the exercise of undue influence over the appellant, that he bad represented to her that it related only to plots nos. 407I1 and 409 /I of. Tadavalga village and he had fraudulently included in the document plots nos. 91 and 92 of Lingadahalli vi11age.

The trial court, however, dismissed the appellant's suit in respect of plots nos. 407/1 and 409/1 on the ground that the suit was barred under Article 91 of the Limitation Act.

With regard to plots 91 and 92 of Lingadahalli village the trial court gave a decree in favour of the appellant.

The respondents took the matter in appeal to the Mysore High Court.

The appellant filed crossobjections against the decree of the trial court. By its judgment dated July 29, 1960, the High Court allowed the appeal and dismissed the cross-objections, thereby dismissing the suit of the appellant in its entirety.

The High Court confirmed the finding of the trial court so far as plots nos. 407 /1 and 409/1 of Tadavalga village were concerned and held that the suit was barred by limitation as it was not filed within three years of the execution of the deed. As regards plots nos._ 91 and 92 of Lingadahalli village the High Court held that the alleged fraud had not been established by the appellant.

On behalf of the appellant learned Counsel contended, in the first place, that the High Court was not justified in interfering with the finding of the trial court that plots nos. 91 and 92 of Lingadahalli village were included in \he gift deed by the fraud of the husband without knowledge of the appellant. It was pointed otit

that the finding of the High Court is vitiated because it has not taken into account certain important circumstances upon whkh the trial court relied for reaching its finding.

In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. At the time of the gift deed, :he appellant was a young woman of about 24 years of age. She was illiterate and ignorant <jnd all her affairs were being managrd by her husband who stood in a position of active confidence towards her.

The trial court found that the appellant's husband was in a position to dominate her will. The document of gift alsoappears to be grossly undervalued at Rs. 1,500 while actually the alue of the property was about Rs. 40,000 at the relevant'

SUPREME COURT REPORTS

(1968) 2 S.C.R.

date.

The trial court has foun\I that plots nos. 91 and 92 of Lingadahalli village were the most valuable and fertile lands owned by the appellant before the execution of the gift deed. It is the admitted position that not only the appellant and her husband but her husband's two brothers and their families lived on ihe income of the two plots. There appears to be no reson whatever for the appellant to agree to transfer the valuable lands of plots nos. 91 \illd 92 of Lingadahalli village inherited by her from her fathcc to her husband, It was suggested on behalf ot the respondents that it was the desire of the appellant that her husband should marry a second wife and he could not fir.d a bride to marry unless he possessed sufficient properties and therefore the appellant executed the .gift deed in favour of her hu, band with a view to enable him to find a bride. But it is an uPdisputed fact that the appellant's husband married the 4th respondent .a"<lut three ycais after the execution of the gift deed and it i' not po;- sible to accept the case of the respondents that there was any connection between the gift deed and the second marriage nf Shiddappa. The High Court has referred to the evidence uf the attesting witness, Bhimarao who said that the cocumc11'. was read over to the appellant before she put.her thumb imprcs_, io:i threon.

On the basis of this evidence the High Court came to the condusion that the plea of fraud could not be accepted ~:; 5hiddappa would not have allowed th.: document to be read over to the appellant if he intended to perpetrate a fraud on i1er.

But Bhimarao was not a disinterested witness because it is admitted that he had been approached by the respondents before they filed the Written Statement in the suit. For this reasor the trial court disbelieved the evidence of Bhimarao and no reason har, been given by the High Court for taking a different view of the evidence Of this witness.

The other attesting witness, Venkappa does not say that the gift deed was read over to the appelldnt

before her thumb impression was taken on it or that she knew of its contents. In our opinion the Civil Judge was right in taking the view that the appellant never agreed to convey the lands in plots nos. 91 and 92 of Lingadahalli village and that they were included in the gift deed by the fraud of Shiddappa without the knowledge of the appellant.

On behalf of the respondents Mr. Naunit Lal, however, stressed the argument that the trial court was wrong in holding that the gifc deed was void on account of the perpetration of fraud.

It was submitted that it was only a voidable transaction and the

suit for setting aside the gift deed would be governed by Article 95 H of the Indian Limitation Act.

In our opinion, the proposition contented for by Mr. Naunit Lal must be accepted as correct. It is well-established that a contract or other transaction induced or

H -

NINGAWWA v. BYRAPPA (Ramaswafni, J.) 801

tainted by fraud is not void, but only voidable at the option of the parly defrauded.

Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. "The fact that the contract has been induced by fraud does not. make the contract void or prevent the property from passing, but merely gives the party defrauded a righi on discovering the fraud to elect whether he shall continue tc treat the contract as binding or disaffirm the contract and resume the property. If it can be shown that the party defrauded has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, his election is determined for ever.

The party defrauded may keep the question open so long as he does nothing to affirm the contact."

(Clough v. L. & N.W. Ry.)( 1 ).

The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but a-s to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof.

With reference to the former, it hasbeen held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinon( 2 ) the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a frauc'ulent representation by the acceptor that he was signing a guarantee. Ii; i holding that such a plea was admissible, the Court observed :

"It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on thy ground that the mind of the signer did not accompany the signature; in other words, that he never iritended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended. . . . The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or'thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument."

This decision has be<on followed by the Indian courts-Sanni Bilii v. Siddik Hossain('), and Brindaban v. Dhurba Charan(').

It is not the contention of the appellant in the present case that there was any fraudulent misrepresentation as to the character of the gift deed but Shiddappa fraudulently included in the gift deed

(I) (1871) L.R. 7 E<. 26, 34.

(3) A.LR. 1919 Cal. 728.

(2) [t869] 4 C.P. 704.

(4) A.LR. 1929 Cal. 606.

802 SUPllEME COURT llEPOl.TS [1968] 2 s.c.R.

plots 91 and 92 of Lingadahalli village without her knowledge.

We are accordingly of the opinion that the transaction of gift waa voidable and not void and the suit must be brought within the time prescribed under Article 95 of the Limitation Act.

It was contended on behalf of the respondents that the terminus a quo for the limitation was the date oi the execution of the gift deed and claim of the appellant was therefore barred as the suit was filed more than three years after that date. We are unable to accept this argument as correct. Article 95 prescribes a period of limitation of three years from the time when the fraud becomes known to the party wronged.

In the present case, tile appellant stated that she did not rome to know of the fraud committed by her husband in respect of plots 91 and 92 of Lingadahalli vill<1gc till his death.

The trial court has discussed the evidence on this point and reached the conclusion that the case of tl!e appellant is true. The appellant lived with her husband 011 affectionate terms till the time of his death. Till then she had ae

rc11.•on to suspect that any fraud had been commi!lcd on her in respect of the two plots in L'ngadahalli village. Jt is only after his death when his brothers and respondent no. 4's brothers removed Rrain from the house against her wishes that the appcllut came to know that the lands at Lingadahalli village were included in the gift deed by fraud. The suit was instituted hy the appell1nt within a few days after she came to know of the iraud. We arc thrrcfore of the opinion that the suit was brought within time prescribed under Art. 95 of the Indian Limita!ion Act so far a~

plot~ 91 and 92 of Lingadahalli village are concerned

As regards plots nos. 407/l and 409/l of Tadavalga villa&e the trial court has found that the husband of the appellant was in a position of active confidence towards her at the time of the gift deed and that he was in a position to dominate her will and the transaction of gift was on the face of it nr.onscionable.

Setkn 16(3) of the Indian Contract Act says that where a person who is in a position to dominate the will of auothcr enters into a transaction with him which appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such transaction was not induced by undue inHuence, shall lie upon the person in a position to dominate the will of another.

Section 111 of the Indian Evidence Act also states :

"Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of prnving the good faith of the transaction b or. the party who is in a position of active confidence."

; A

N!NGAWWA v. BYRAPPA (Ramaswami, J.) 803

The trial court found that the respondents had not adduced sufficient evidence to rebut the presumption under these statutory provisions and reached the finding that the gift deed was obtained by the appellant's husband by undue influence as alleged by her.

The finding of the trial court has been affirmed by the High Court.

But both the trial court and the High Court reiused to grant relief to the appellant on the ground that the suit was barred under Art. 91 of the Limitation Act so far as plots nos. 407/1 and 409/1 were concerned. On behalf of the appellant it was contended that the lower courts were wrong in taking this view. We are, however,. unable to accept this -argument as correct.

Article 91 of the Indian Limitation Act provides that a suh to set aside an instrument not otherwise provided for (and no other provision of the Act applies to the circumstances of the case) shall be subject to a three year's limitation which begins to run when the facts entitling the plaintiff to have the instrument cancelled or set aside are known to him. In the present case, the trial court has found, uron examination of the evidence, that at the very time of the execution of the gift deed, Ex. 45 the appellant knew that her hu<b3nd prevailed upon her to convey survey plots nos. 407 /1 and 40\1/l of Tadavalga village to him by undue influence. The finding of the trial court is based upon the admission of the appellant herself in the course of her evidence. In view of tlris finding of the trial court it is manifest that the suit of the appellant is barred under Ari. 91 of the Limitation Act o far as plots nos. 407 Ii and 409/1 of Tadavalga village are concerned. On behalf of the appellant Mr. K. R. Chaudhuri presented the argument that the appellant continued to be under the undue influence of her husband till the date of his death and the three year's period under Art. 91 should therefore be takento run not when the appellant had knowledge of the true nature of the gift ded but from the date when she escaped the influence of her husband by whose wi!l she was dominated. It is riot possible to accept this argument in vie'.v of the express language of Art. 91 of the Limitation Act which provides that the three years' period run' from the date when '.he plaintiff came to know the facts entitling her to have the in,:rument cancelled or set aside.

This view is borne out by the decision of the Judicial Committee in Someshwar Dutt v.

Tirbhawan Dutt(') in which it was held that the limitation of a suit to set aside a deed of gift on the ground that it was obtained by undue influence was governed b¥ Art. 91 of the Indian Limitation Act, _and the three years penod runs from the date whe'l the plaintiff discovered the true nature of the deed, and not from the d'ite when he escaped from the influence by which he alleged that he was dominated.

(ll 61 I.A. 224.

804 SUPll.EME COURT REPORTS

[1968 I 2 S.C.R.

For the reasons expressed we hold that this appeal must be allowed and the appellant must be granted a decree that the gift deed, Ex. 45 is not binding on her so far as plob 91 and 92 of Lingadahalli village are concerned and she is further entitled to recover possession of the said two plots frnm the defendantrespontlents with mesne profits.

We accordingly set aside the decree of the High Court, restore the decree of the Civil Judge, Senior Division, Bijapur dated January 29, 1953 and allow this appeal with costs. v.r.s.

Appeal allowed.

NINGAWWA

BYRAPPA & 3 ORS

January 17, 1968

C. SHAH

V. RAMASWAMI, JJ.

Indian Limitation Act

Arts. 91 and 95

Art. 95

Limitation Act, 1908

s. 16(3)

Indian Contract Act

Art. 91

CIVIL APPELLATF. JURISDICTION

K. R. Chaudhuri

Naunit Lal

Ramaswami

Mysore High Court

July 29, 1960

January 16, 1938

Lingadahalli village

Tadavalga village

Shiddappa

Bijapur

January 18, 1938

Indi

Article 91

Limitation Act

Bhimarao

Venkappa

Naunit Lal

Article 95

Limitation Act

Article 95

Limitation Act

Article 95

L'ngadahalli village

Rrain

Art. 95

Indian Contract Act

Section 111

Indian Evidence Act

Art. 91

Limitation Act

Article 91

Limitation Act

Limitation Act

K. R. Chaudhuri

Art. 91

Art. 91

Limitation Act

Art. 91

Limitation Act

January 29, 1953


LAXMAN SIDDAPPA NAIK v.

KATTIMANI CHANIAPPA JAMAPPANNA & ORS.

January 19, 1968

[M. H!DAYATULLAH, S. M. S!KR! AND K. S. HEGDB, JJ.]

Constitution <Scheduled Tribes) Order, 1950-Caste of candidature- Burden of proof.

An unsuccessful candidate for •olection to the Mysore Legislative Assembly for a seat reserved for a member of the Schedul-:d l'ribes, filed an election petition on tho ground that the other three candidates belonged to the Bedar caste, which is not a tribe specified in Part YIU para 2 of the Constitution (Scheduled Tribes) Order, 1950.

The appellant-the succl.!ssful candidate, asserted that he was a Nayaka (which is mentioned at item No. 13 in Part VIII (2) of the Order) and Nayakas are also.called Bedars.

The High Court held that there was no Nayaka in this area and that the appellant was a Bedar.

Allowing the appeal, this Court,

HELD : The Presidential o,.Jci showed that Naikdas or Nayakas are to be found not only in ihe districts of Mysore but. also in Maharashtra and Raja!:ithan.

This tribal community was therefore, quite widespread and it was not pOssible to say that there was no Nayaka in the district to which the appellant belong, d.

Even if he was the solidary Nayaka he would be covered by the Presidential order and would be .. entitled to stand for the reserved sat for the tribal communities mentioned in the Pre"Siden~ tial Order. He claimed to be a. Nayaka and this claim was upheld by the Returning Officer. [810 G]

Once the nomination paper was accepted the burden .must be 3:ssuffied again by the party challenging the fact that a candidate belonged to a particular community.

If prima facie evidence h:id been led by the election petitioner the burden might have shifted to the candidate but as he led no evidence whatever he must obviously fail. [809 H; 810 A]

The election peitioner could have provr.d by positive evidence that the appellant was a Bedar. That would have proved that he was not a Nayaka. l"o establish the fact evidence was required to show the characteristics, such as customs of marriages. births; deaths, wdrship, dress, cupation and the like which distinguish a Bedar from a Nayaka. Evidence was also possible to show that the appellant was received in the Bedar community.

This was capable of being proved by showing inter-marriage, interdinin~, community of worship, residence in a particular place and the like. Such facts would have led lo the drawing of aQ inference one way or the other.

A bare assertion by the election petitioner that the appellant is a Bedar does not suffice to displace the acceptance of the nomination paper or the claim of the appellant that he is a Nayaka. [808 D-F)

Abhoy l'ada Saha v, Sudhir Kumar Monda/, [1966] supp. S.C.R. 387, B. Basavalingc.ppa v. D. Munichinnappa & Ors. A.I.R. 1965 S.C. 1269 and llhaiya Lal v. Harikishan Singh & Ors. A.I.R. 1965 S.C, 1957, referred to.

CrvIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of 1967.

Appeal under s. 116-A of the Representation of People Act 19 51 from the judgment and order dated July 24, 1967 of the

Mysore High Court, Bangalore in Ele<., tion pctitio,1 No. I 0 of 1967.

S. S. Ja .. a/i and M. Veerappa, for the appellant.

R. Gopa/akrishnan, for respondent no. I.

The Judgment of the Court was delivered by

Hidayatullah, J.

This is an appeal under s. 116-A of the Representation of the People Act, 1951 against the judgment and order, July 24, 1967, of the High Court of Mysore in Election Petition No. 10 of 1967. The High Court has ,; et aside the election of L&xman Siddappa Naik, who is the appellan: before us.

The appellant had stood from Gokak constituency of the Mysore Legislative Assembly for a seat reserved for a member of the Scheduled Tribes specified in Part VIII para 2 of !he Constitution

(Scheduled Tribes) Order, 1950.

Five others had tiled nomination papers.

The nomination paper of one Kaushalya Devi was rejected by the Returning Officer and one Bhimgouda Mallagouda Patil withdrew from the contest within the time permi'.ted by the Act.

Thcte were thus four contesting candidates. The result of the poll was as follows :-

1. Shri Laxman Siddappa Naik 17522

2. Shri Parasappa Hanmantha Karaing 7044

3. Shri Patel Shivangowd Malgowd 5996

4. Shri Kattimani Chandappa Jampanna 620

The election petition was filed by the last candidate who had rectived only 620 votes.

The main contention and on which his cleciiun petition in the High Court succeeded was that the appellant and the other two were not members of the Scheduled Tribes and were not thus entitled to stand tor the reserved seat.

This objection was also taken before the Returniilg Officer but was rejected by him.

The case of the election petitioner was that the appellant did not bdong to the tribe shown as Nayaka including Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka and )'fana Nayaka, mentioned at No. 13 in Part VIII (2) of the Order. He was, on the other hand, a "Bedar" which tribe is not mentioned in the

Order.

The election petitioner also urged that the other two candidates also did not belong to any Scheduled Tribes but to the

'Bedar" caste.

He, therefore, asked that he himself should be declared elected treating the votes cast in favour of his opponents as "thrown away" since the voters knew this fact and voted with this knowledge. h answer to the petition the appellant asserted that he was a Nayaka although he stated that Nayakas are also

called "Bedars". The High Court on an appraisal of the evidence and after looking into census reports and certain v:riters on the subject of Castes and Tribes has come to the conclusmn that there is no Nayaka in this area and that the appellant is a Bedar. The appellant now appeals against the order of the High Court.

Under Art. 332 of the Constitution seats are reserved for Scheduled Tribes in the Legislative Assemblies of the States and under Art. 342 of the Constitution the President has, with respect to the States, after consultation with the Governors, by public notification specified the tribal communities which are deemed to be the Scheduled Tribes in relation to a particular State. Parliament has power by law to include in or exclude from the list of Scheduled Tribes specified in the President's order any trib~ or tribal community or part of or group within any tribe or tribal community.

The Presidential Order was modified in 1956 :md

1960. The District in which Gokak is situated was formerly part of the Bombay State. 24 tribes were named in the original Presidential Order.

In 1956 this part was incorporated in the State of Mysore. In 1960 the Bombay State was bifurcated into two.

As a result the Presidential order was suitably amended. Para 2 of Part VIII now refers to the area formerly in Bombay State which now is a part of the Mysore State. This part now shows 19 tribes instead of 24.

An identical list of tribes is also shown in certain districts of Maharashtra and Rajasthan. Formerly the entry read only "Naikda or Nayaka" but now it reads "Naikda or Nayaka, including Cholivala Nayaka, Kapdia Nayaka, Mot1' Nayaka arid Nana Nayaka". The "Nayaka" also means a chieftain and the word "Naikda" means a petty Nayaka, but that obviously is not intended to be its meaning.

These words definitely refer to tribal communities which the President's Order shows are autochthonous in the respective areas. The appellant claimed to be a Nayaka. In his evidence he .denied that he was a Naikda.

He did not know the other tribal communities included in the P.xpression "Naikda or Nayaka" by the entry. In Abhoy Pada Saha

v. Sudhir Kumar Monda/(') the question had arisen what was meant by the entry "Sunri excluding Saha". The plea of the election petitioner in that case was that the candidate was a Saha.

He failed to prove it and it was held that he belonged to the Sunri caste. It was pointed out that where the entry excluded a certain sub-caste the candidate must be taken to belong. to the original caste if his exclusion as a member of that sub-caste was not proved. In other words, the matter was treated as a question of fact.

Similarly, in B. Basava/in<(appa v. D. Munichinnappa and others(") the Voddar caste of Mysore State, before the State Reorganization in 1956 was held, on evidence, to be the same as

(1) (1966] Supp. S.C.R. 387.•

(2) A.I.R. 1965 S.C. 1269.

the Bhovi caste mentioned in the Constitution (Scheduled Castes)

Order, 1950.

Again the matter was treated as a question of fact.

This Coun has finally decided in Bhaiya Lal v. Harikishan Singh and others( 1 ) that what caste a candidate belongs to is a question of fact.

Starting from this conclusion that the matter in controversy between the election petitioner and the appellant is a question of fact we have to address ourselves to the right questions in this case.

These questions are : to what tribal community, if any, docs the appellant belong_ and who is to prove the necessary facts?

These questions obviously have to be resolved on certain principles.

The ordinary rule is that a person, who as a plaintiff, asserts a fact, has to prove it.

The election petitioner here asserts two facts (a) that the appellant is not a Nayaka as mentioned in the Order, and (b) that he is a "Bedar".

The first is a negative fact and the second a positive one.

It is said that the proof of the negative was not only difficult but impossible.

We do no: agree.

The election petitioner could have proved by positive evidence that the petitioner was a "Bedar".

That would have proved that he was not a Nayaka.

To establish the fact evidence was required to show the charactl'ristics, such as customs of marriages. hirths. deaths, worship, dress, occupation and the like which distinguish a Bedar from a Nayaka.

Evidence was also possible to show that the petitioner was received in the Bedar community.

This was capable of being proved by showing inter' marriage. inter-dining, community of worship, residence in a particular place and the like.

Such facts would have 'led to the drawing oJ an inference one way or the other.

A bare assertion that the appellant is a Bedar does not suffice to displace the acceptance of the nomination paper or the claim of the appellant (hat he is a Nayaka.

We shall now see what the election petitioner did to establish that the appellant was a Bedar which would have proved conclusively that he was not a Nayaka.

The election petitioner examined five wi1nesses inoluding himself and filed two documents.

The first document (Ex.P.-1) was a certified extract of Births and Deaths Register of Arbhani village issued by the Tehsildar Gokak regarding the birth of a child Anasuya by name.

It was alleged that Anasuya was the daughter of the appellant and the caste was dcscrihcd as Bedar.

The appellant denied that it related io his daughter.

He said that he had only one daughter by name t5hankuntala and that the certificate produced was not of his

'dauhter.

No evidence was led to establish that the cerlificate related to the daughter of the appellant.

The other document <Ex. P-2) was a certified extract of a school leaving certificate

(I) A.l.R. 1961S.C.1557.

relating to one Lakshinappa Siddappa Naik.

The appellant denied that it was his school leaving certificate.

Again no attempt was made to connect the certificate with him.

The original of Ex. P-2 was not summoned from the school office.

These facts were capable of being proved.

There was not even cross-examination of the appellant with reference to these documents.

The High Court rejected both the documents.

As regards the Qral evidence it is sufficient to say that it did not exist.

The four witnesses summoned by the election .petitioner only proved that Cholivadi, Lamani and Kurubar were also called Nayaka and that the Bedars had sub-castes known as Talawars, Valmiki and Nayaka Makkalu.

None of these witnesses, however, diiifllayed any knowledge of the Gokak area or the position of the Bedars and Nayakas in that area.

In fact, they clearly stated that they knew nothing about it.

The election petitioner as witness stated that he had heard tha! the appellant was a Bedar and he did not examine any persoa in suppoi:t of his statement.

His evidence was obviously hearsay and when he was questioned he could not even name the person from whom he had learnt these facts.

The evidence on the part of the appellant was also nothing on both the points.

He filed a document Ex. R-1 said to be a certified copy of the extract relating to his birth from the Births and Deaths Register issued by the Tehsildar, Gokak.

The High Court summoned the original which we have also seen.

There is a correction in the appropriate column.

Some writing appears to have been erased wher~ Nayaka is mentioned and it is possible to read the first letter, which is "w" (equal to B) and this shows that the original writing was perhaps Bedar.

There is nothing to show when the correction was made.

In the Register there are 58 entries and many of them relate to Bedars but there is no other entry of a Nayaka.

No doubt this is a suspicious circumstance but the question still is : does the appellant suffer ? In a case of this type when both sides lead-no evidence the matter must be decided on the basis of the original onus which clearly lay on the election petitioner.

Mr. Gopal Krishnan argres that as an objection was raised before the Returning Officer and was repelled on the acceptance of R-1, now found unacceptable, the appellant is relegated to the original burden.

Here again this is a wrong. approach to the qvestion.

The Returning Officer was entitled to act on the evidence before. him.

The original was not seen by him and the doubt, now created, was not present in h; s mind.

Once the nomination paper was accepted the. burden must be assumed again by the party challenging the fact that a candidate belonged

to a particular community.

If prima facie evidence had been led by the election petitioner the burden might have shifted to the candidate but as he led no evidence whatever he must obviously fail.

This is not one of those cases in which both sides having led evidence the question where onus lies, becomes immaterial, since the court can reach a conclusion on the totality of the evidence before it.

There was no evidence in this case one way or the other.

In these circumstances, the election petitioner could not succeed because of the weakness of the appellant's case.

The High Court did not approach this problem from his angle.

As it could not reach any conclusion on the evidence before it, the High Court turned to Census Reports of the Bombay Presidency of 1911. 1921 and 1931, the Bombay Karnatak Gazetteer of 1893, Hu:tons book on Castes in Indian ( 1931 ), Mysore Tribes and Castes Vol. II by Nanjundayya and Iyer, Hindu Tribes and Castes. Vol. II by Sherring. Castes and Tribes of Southern India by Thurston. certain Government Orders issued in 1959 and 1960 and the Administration Report of the Welfare Department of 1956-57.

These documents could be consulted to find out the distinguishing customs and manners of different tribes but not to reach a conclusion about the appellant.

The conclusion drawn from this material was that Naikda is a dis<inct tribe, that Nayaka! arc not mentioned and that the Bedars could not be called 'Naikda".

Reverting to the pica of the appellant that he was not a Naikda . but a Nayka and that Nayakas were also known as Redars, the learned Judge reached the conclusion that the appellant was a Bedar.

He found no evidence in these Reports of the existence of 1'ayakas in this district and as the appellant claimed to be a Nayaka he felt that he must be a Bedar because there was no Nayaka in this area.

It has been pointed out in this Court, in the cases to which we have referred, that one must accept the Presidential Order.

The Presidential Order shows that Naikdas or Navakas are to be found not only in the districts of Mysore but also in Maharashtra and Rajasthan.

This tribal community is. therefore, quite wide-spread and it is not possible to say that there was no Nayaka in the district to which the appellant belonged.

Even if he was the solitary Nayaka he would be covered by the Presidential Order and would

be entitled to stand for the reserved seat for the tribal communities mentioned in the Presidential Order.

He claimed to be a Nayaka and this claim was upheld by the Returning Officer.

It is significant that he was not an independent candidate but one chosen by a party.

This party would not have been easily imposed upon and would have taken care to select the right person for the seat.

There were two others who also came forward as Nayakas.

E .. •

L. S. NAIK v, K. C. JAMAPPANNA (Hidayotu//ah, J.) 81 l

A these circumstances, <he learned Judge was in error in attempting. to establish that the tribal community mentioned as Nayakas was not to be found in this area and that only Naikdas were found and as the appellant did not claim to be a Naikda he must be held to be disentitled to be chosen to fill this seat for the tribal communities. A heavy burden obviously lay upon the election petitioner to.

B displace his .claim by evidence.

He did not even lead prima facie evidence and therefore the claim cannot be said to have been negatived.

An election is something which cannot be readily set aside.

There must be proof and convincing proo.f that a person is not properly chosen to fill a particular seat.

Mere suspicion or C surmise is not sufficient after the Returning Officer accepts a candidature and the candidate is chosen in the election. Once a community has gone to the polls and the voters have exercised their franchise it is necessary for an election petitioner to show that the candidate is not entitled to the seat.

In other words, the burden originally lies on the election petitioner and he cannot succeed D ,. unless he discharges that burden.

The High Court recognized that there was no evidence in the case but went into the matter from a different angle and attempted to contradict the Presidential Order which it was not entitled to do.

We are accordingly satisfied that the election petitioner had failed to establish his case and that the election of the appellant could not be set aside.

The appeal will accondingly be allowed.

The order of the High Court will be set aside. The election petitioner must pay the costs of the appellant here and in the High Court.

Y. P.

Appeal allowed.

LAXMAN SIDDAPPA NAIK

KATTIMANI CHANIAPPA JAMAPPANNA & ORS

Mysore

Maharashtra

s. 116

S. S. Ja

M. Veerappa

R. Gopa

Hidayatullah

s. 116

Representation of the People Act, 1951

High Court of Mysore

L&xman Siddappa Naik

Kaushalya Devi

Bhimgouda Mallagouda Patil

Laxman Siddappa Naik

Parasappa Hanmantha Karaing

Patel Shivangowd Malgowd

Kattimani Chandappa Jampanna

Cholivala Nayaka

Kapadia Nayaka

Mota Nayaka

)'fana Nayaka

Art. 332

Art. 342

Parliament

Gokak

Bombay

Rajasthan

Kapdia Nayaka

Mysore State

Anasuya

Lakshinappa Siddappa Naik

Cholivadi

Lamani

Kurubar

Gopal Krishnan

Nanjundayya

Iyer

Thurston


PASHUPATI NATH SINGH

HARIHAR PRASAD SINGH

January 2z, 1968

(M. H1DAYATULLAH 0 S. M. S!KRI AND K. S. HEGDE, JJ.]

Rtpr<Stntation of the People Act, 1951, ·"· 30 to 35, and 3cndi .date not having made or subscribed ooth nr t;/firmation under Art. 173(a)

-Whether entitled to do so on date fixed fOI' scrutiny of nomination

paptr.~.-"On lhe date fixed for scrutiny"-nrtaning of.

Con.rrit11tion of India Art. 173fal an<I third Schedule-When oath tx C1{firn1<.:tion 10 he 1nade or subscribed by candidaJt.

The ap1dlar,; challenged the election of the respondent to the Bihar Legislative /., ssembly by an election pctilion on the ground that his own nomination paper had been improperly rejectd by the Retumin& Officer.

On January 21, 1967 the dale fixed for scrutiny of nomination papers under s. 36 of the Reprc'S"•nlation of the People Act, 1951. the Returning Officer rejected the nomination paper of the appellant on tbe ground that he was Jl01 qualified to be chosen to fill a scat in the State Legislature since he had not made and subscribed the requisite oath or affirmation as enjoined bv clause (a) of Art. 173 of tbe Constitution. The High Court rej-zcted the appellant's election petition.

ll was contended for the appellant that on objection being taken undtr s. 36(2) that the petitioner had not made and suh<cribed an oath or affirmation acoording to the form se: out in the Third Schedule of the LI:>nstitution, he was entitld to make and subscribe the oath or affirmation immediately before the objection was considered by the lleturning Officer.

As soon as a candidate makes or subscrib6 the oath or affirmation, he would become qualified under Art. 173 of the Constitution, and this qualification would exist "on the da!e fixed for the scrutiny" within the meaning of s. 36(2) because the date of scrutiny of nomination papers-in this case January 21, 1967-would not ha"'. passed away by the time the oath or affirmation is taken or sub5cribcd.

HELD : dismissing the appeal.

The expression "on the date fixed for scrutiny" in s. 36(2) (a) means "on the whole of the day on which the scrutiny of nomination has to take place".

In other words, tbe qualification must exist from the earliest moment of the day of scrutiny. On this date the Returning Officer has to decide the objections and the objections have to be made by the other

candidates after examining the nomination papers and in the Hght of s.

G 36(2) of the Act and other provisions.

On the dale of the scrutiny the other candidalcs shouJd be in a position to raise all possible objections

heforc the scrutiny of a particu1ar nomination paper starts. (817 F-Hl

Parnte.- v.·/Gme.<, (1866-67) LR. 2 C.P. 348 and Reg v. H111nphtry, 10 Ad'. & E. 335: referred !o.

The fact that there was no place in form 2B prescribed under the Conduct of Election Ru:cs. 1961 wh-:re it can be staied by the candidates H 1hat he had taken th~ requisite oath or affirmation docs nol mean that th-.:

oath or affirmation cnn he taken and subscribed on the date fixed for c; crutiny.

The nomination paper does not provide for the statement about ..

A the oath because the oath or affirn1ation has to be taken after a candidate has been nominated.

It cannot be said that a person can be regarded as nominated only when, after scrutiny of the nomination papers, the Returning OffiC'er finds him to be validly nominated.

The form of oath does not say "having been vali<lly nominated" but only "having been nominated".

[818 EJ

Shira Sluu1k(; r Kanodia v. Kapildeo Narain Singh, Election Appeal No. 4 of 1965; judgment dated September 22, 1965 of the Patna High Court; disapproved.

The words "having been nominated" in the fo'rm of the oath or affirmation in the third Schedule to the Constitution clearly show that the oath or alftrmation c.innot be taken or made by a candidate before he has been nolT'!!'l.atcd as a candidate.

Further. it is clear that none of the sections from s. 30 to s. 36 require that this Oath should accompany the nomination paper.

No refeience has bee"n made to the form of oath in s. 33 or s. 35, although in s. 33 it is provided that in certain cases the nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. [817 B, C]

Ctv1L APPELLATE JuR1so1cnoN: Civil Appeal No. 1692 of 1967.

Appeal under s. 116-A of the Representation of the People Act, 195 l from the judgment and order dated September 26, 1967 of the Patna High Court in Election Petition No. 8 of 1967.

H. R. Goklwle, J. P. Goyal and Sobhag Mal Jain, for the appellant.

S. V. Gupte, S. N. Prasad and B. P. Singh, for the respondent.

R. K. Garg and S. C. Agarwal, for the intervener.

The judgment of the Court was delivered by

Sikri, J.

This is an appeal under s. 116A of the Represer.- tation d the People Act, 1951-hereinafter referred to as the Act-from the. judgment of the High Court of Judicature at Patna dismissing Election Ptition No. 8 of 1967 filed by the appellant Pashupati Nath Singh hereinafter referred to as the petitioner. ln order to appreciate the point arising before us it is necessary to state the relevant facts.

The petitioner stood as a candidate for election to the Bihar Legislative Assembly.

The election to that Assembly from the Dumraan Assembly Constituncy was held during the last gene- H ral elections as per the following schedule ;

"(a) Date of filing nomination papers-13-1-1967 to 20-1-1967.

L3 Sup Cl/68-~

(b) Date of scrutiny of nomination papers-21-1-1967.

(c) Last date of withdrawal of candidatures-23-1-1967.

(d) Date of poll-17-2-1967.

{e) Date of counting of votes-. 23-2-1967.

(f) Date of declaration of result of the election-

23-2-1967".

The petitioner filed his nomination paper before the Returning Officer at Buxar on January 16, 196.7.

Eight other candidates, including the respondent Harihar Prasad Singh, filed their nomination papers before the Returning Officer on different dates between January 13, 1967, and January 20, 1967. On January 21, 1967, the nomination papers were taken up for scrutiny, when the Returning Officer rejected the nomination paper of the petitioner and accepted the nomination papers of the remaining eight candidates. On February 17, 1967, the poll was held and the respondent, Shri Hnrihar Pra, ad Singh, secured the largest number of votes, namely, 14,539, and was accordingly declared elected. Thereupon the petitioner presented election petition in the Patna High Court for a declaration that the election of the respondent is void on the ground that the nomination paper of the petitioner was in1propcrly rejected by the Returning Officer.

The High Court held that the nomination of the petitioner ·.vas rightly rejected by the Returning Officer on the ground that he was not qualified to be chosen to fill a seat in the State Legislature since he had not made and subscribed the requisite oath or affirmation as enjoined by cl. (a) of Art. 173 of the Constitution, either before the scrutiny of nominations or even subsequently on the date of scrutiny.

The short question which arises in this appeal is whether it is necessary for a candidate to make and subscribe the requisite oath pr affirmation as enjoined by cl. (a) of Art. 173 of the Constitution before the date fixed for scrutiny of nomination paper.

Ino other words, is a candidate entitled to make and subscribe the requisite oath when objection is taken . before the Returning Officer or must he have made and subscribed the requisite oath or affirmation before the scrutiny of nomination commenced ? The answer to this question mainly depends on the interpretation of s. 36(2) ofthe Act. It will, however, be necessary to refer to some other sections of the Act in order tr

fully appreciate the effect of the words used in that section Section 32 of the Act provides for nomination of candidates for election thus :

H .

"Any' person may be nominated as a candidate for election to fill a seat if he is qualified-to be chosen to fill that seat under the provisions of the Constitution and this Act or under the provisions of the Government of Union Territories Act, 1963, as the case may be." It was suggested by the learned counsel for the respondent, Mr. Gupte, that this section means that a canidate lll:ust. also be qualified to be chosen 011; the last date for filmg nonupattons.

We need not consider this question because we have come to the conclusion that the petitioner was not qualified for being chosen to fiil the. seat on the date fixed. for scrutiny of nominations within the meaning of s. 36(2)(a).

Section 33 provides for presentation of nomination paper and certain requirements for a valid nomination.

Sub-s. (2), for instance, provides that in the case of a constituency where any seat is reserved, the nomination paper must contain a declaration by the candidate specifying the particular caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste or, as the case may be, a Scheduled Tribe of the State. Sub-s. (3) provides that where a candidate is a person who, having held any office referred to in cl. (f) of s. 7, has been dismissed and a period of five years has not elapsed since the dismissal, he must with the nomination paper give a certificate issued in the prescribed manner by the Election Commission to the effect ihat he has rot been dismissed for corruption or disloyalty to the State.

Section 35 deals with the notice of nominations and the time and place for their scrutiny.

The Returning Officer has to inform the person or persons delivering the nomination paper of the date, time and place fixed for the scrutiny of nominations.

He is also required to sign a certificate stating the date on which and the hour at which the nomination paper has been delivered to him, and also to cause to be fixed in some conspicuous place in his office a notice of the nomination containing descriptions similar to those contained in the nomination paper, both of the candidate and of the proposer.

Then comes s. 36, relevant portion of which reads as follows:

"36. Scrutiny of nominations.-(1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person, may attend at such time and place as the returning officer

may appoint; and the returning otlicer shall give them all reasonable facilities for examining the 'nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.

( 2) The returning officer shall then exam inc the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject

any nomination on any of the following grounds :-

(a) that on the date fixed for the scrutiny of 'lcminations the candidate either is not qualified or is disql!alificd for being chosen to fill the seat under any of the following provisions that may be applicable, namely:-

Articles 84, 102, 17 3 and 191.

Part II of this Act. and sections 4 and 14 of the Government of Union Territories Act, 1963 or

( b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or

( c) that the signature of the candidate or the proposer on the nomination paper is not genuine ... "

It will be noticed that" under ' 36 (2) of the Act, one of the grounds on which a nomination can be rejected is that Qn the date fixed for the scrutinv of nominations the candidate is not qualified for being chosen' to fill the scat under Art. 173 of the Constitution.

The relcvanj part of Art. 173 provides :

"173. A person shall not be quaii1ied to be chosen to fill a set in the Legislature of a State unless he- ( a) is a citizen of India, and makes and subscribes before some person authorized in that behalf by the Election Commission an oath or affirmation according to the form set out for. the purpose in the Third Schedirle." The form referred to reads as under :

"Form of oath or affirmation to be made by a candidate for election to the Legislature of a State :-

" "l, A.R., having been no; ainatcd as a candidate to fill a scat in the Legislative Assembly (or Legislative

H ..

H ..

PASHUPATI NATH V. HARIHAR PRASAp (Sikri, J.) 817

Council), do swear in the name of God/ solemnly affinn that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India" " ".

The words "having been nominated" in this fonn clearly show that the oath or affirmation cannot be taken or made by a candidate before he has been nominated as a candidate.

Further, it is clear that none of the sections from s. 30 to s. 36 require that this oath should accompany the' nomination paper.

No reference has been made to the fonn of oath in s. 33 or s. 3S, although in s. 33 it is provided that in certain cases the nomination paper should be accompanied by a declaration or by a certificate issued by the Election Commission. In this case it is common ground that no oath or affinnation was attached to the nomination paper or was filed before the date fixed for the scrutiny.

Mr. Gokhale, who appears for the petitioner, contends that on objection being taken under s. 36(2) that the petitioner hacl not made and subscribed an oath or affirmation according to the fonn set out above, he was entitled to make and subscribe the oath or affirmation immediately before the objection was considered by the Returning Officer. He says that as soon as a candidate takes the oath or makes and subscribes the oath or affim, ation he would become qualified within the terms of Art. 173 of the Constitution, and this qualification would exist "on the date fixed for the scrutiny" because the date of scrutiny of nomination paper-in this case January 21, 1967-would not have passed away by the time the oath or affirmation is taken or subscribed.

It seems to us that the expression "on the date fixed for scrutiny" in s. 36(2)(a) means "on the whole of the day on which the scrutiny of nomination has to take plaee". In other words, the qualification must exist from the earliest moment of the day of scrutiny. It wilt be noticed that on this date the Returning Officer has to decide the objections and the objections have to be made by the other candidates after examining the nomination papers and in the light of s. 36(2) of the Act and other provisions. On the date of the scrutir.y the other candidates should be in a position to raise all possible objections before the scrutiny of a particular nomination paper starts. In a particular case, an objection may be taken to the form of the oath; the fonn of the oath may have been modified or the oath may not have been sworn before. the person authorised in this behalf by the Election Commission.

Tt is not necessary under Art. 173 that the permn authorised by the Election Commission should be the returning officer.

In Paynter v. James('), Bovill, C.J., quoted, with approval, A the passage from lhe judgment of Tindal, C.J., in Reg v. Humphery('), in which the following occurs:

" .... we hold it therefore to be unnecessary to refer to instances of the legal meaning of the word 'upon' which, in different cases, may undoubtedly either mean before the act done to which it relates, or sim11lta11eo11s- B ly with the act done, or after the act done, according as reason and good sense require the interpretation, with reference to the context and the subject-matter of the enactment."

Bovill, C.J., observed that "that is a very clear statement of the various meanings of the word "on" or "upon''."

In this connection it must also be borne in mind that law disregards, as far as possible, fractions of the day.

It would lead to great confusion if it were held th!lt a candidate would be entitled to qualify for being chosen to fill a seat till the very end

of the date fixed for scrutiny of nominations.

If the learned.

D counsel for the petitioner is right, the candidate could ask the Returning Officer 10 wait till 11.55 p.m. on the date fixed for the scrutiny to enable him to take the oath.

Reference was also made to Form 2B in the Conduct of Elections Rules. 1961. 'It was pointed out that in ihis form there 1s no place where it can be stated by the candidate that he had taken the requisite oath or aftirmation.

But, )his in our view does not mean that the oath or affirmation can be taken

and subscribed on the date fixed for scrutiny.

It seems to us that the. nomination paper docs not provide for the statement about the oath because the oath or affirmation has to be taken after a candidate has been nominated.

Our attention was invited to an unreported decision of the Patna High Court in Shiva Shankar Kanodia v, Kapildeo Narain Singh('). That decision proceeded on the basis that "one , can be

said to be so nominated only when, after scrutiny of the. nomination papers. the Returning Officer finds him to be validly nominated, as provided under section 36 ( 8) of the Reprent.a- G tion of the People Act, 1951." With respect, the High Court proceeded on a wrong basis.

The form of oath does not say "having been validly nominated" but only "having been nominated."

In the result the appeal fails and is dismissed with costs.

R.K.P.S.

Appeal dismissed, H

(ll (1866-67) L. R. 2 C. P. 348.

(2) to A. D. &. E. JJS.

(3) Eltctin Appeal No. 4 of t%5; judgn1en1 dated September 22. 1965.

PASHUPATI NATH SINGH

HARIHAR PRASAD SINGH

K. S. HEGDE, JJ.

Stntation of the People Act, 1951

Art. 173(a)

Art. 173

s. 36

People Act, 1951

Art. 173

s. 36(2)

Third Schedule

Art. 173

s. 36(2)

s. 36(2)

Shira Sluu1k

September 22, 1965

Patna High Court

s. 30

s. 36

s. 33

s. 35

s. 33

s. 116

Representation of the People Act

H. R. Goklwle

J. P. Goyal

Sobhag Mal Jain

S. V. Gupte

S. N. Prasad

B. P. Singh

R. K. Garg

S. C. Agarwal

Sikri

s. 116A

People Act, 1951

High Court of Judicature at Patna

Pashupati Nath Singh

Harihar Prasad Singh

January 21, 1967

February 17, 1967

Hnrihar Pra

ad Singh

Art. 173

Art. 173

s. 36(2)

Section 32

Gupte

s. 36(2)(a)

Section 33

s. 7

Election Commission

Section 35

s. 36

section 30

section 33

Articles 84, 102, 17

Part II of this Act

sections 4 and 14

section 33

section 34

Art. 173

Art. 173

India

PASHUPATI NATH V. HARIHAR PRASAp

Constitution of India

s. 30

s. 36

s. 33

s. 3S

s. 33

Gokhale

s. 36(2)

Art. 173

s. 36(2)(a)

s. 36(2)

Art. 173

Bovill

Tindal

section 36

People Act, 1951

September 22. 1965


R. RAMAKRISHNA RAO

~"' "'"· OF KERAl., l\

;~;. :: :!3, 1968

(M. HIDAYATULLAH AND K. S. HEGDE, JJ.J

Employees Provident Funds Act (19 of 1952), s. 1(3)(b) ands. 16 (l)(b)-Proprietor of hotel starting new hotel-Number of emplo.vees reaching twenty-Whether employer can claim exemption from appUca tlon of Act for 5 y•ars.'

The appellant started running a hotel in 1948. In 1949 he started a seocnd hotel and in 1959 a third in the same place.

On the addition of the 3rd hotel the number of employees reached t1:0 figure 20.

On the question whether, even if the three hotels were taken together as one establishment, the proprietor could not .' ";' ''r, der s. 16(1) (b) of the Employees Provident Funds Act, 1952, exe1~1pti0": (r!1IT the appJica~ tion of the provisions of the Act for a period of five y<ars from 1959.

HELD : The period should be counted only from 1948, when the establishment was first set up.

Under s. 1(3)(b) the Act applies to establishments employing 20 or more persons. The word 'employing' only describes the establishments to which the Act applies and does not show that there should be continuity of employment of 20 persons for 5 years.

Under s. 16(1) (b), in the case of a new establishment, the period Of 5 years is counted forward from the date the establishment is set up but in the case of an existing establishment from the date tho establishment has been set up. The intention in either case is to give a breathing time to new establishments. [822 C, D,

E-F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 94 of 1965.

Appeals by special leave from the judgment and order dated F January 11, 1965 of the Kerala High Court in Criminal Revi sion Petition No. 90, 107 and 108 of 1964.

B. R. L. Iyengar and A. G. Ratnaparkhi, for the appellant (in all the appeals)

R. H. Dhebar, for the respondent (in all the appeals).

The Judgment of the Court was delivered by

Hidayatullah, J. The appellant is the proprietor of two establishments called Ananda Bhavan Boarding & Lodging and Hotel Brinda. Palghat. He was convicted by the Special 1st Class Magistrate, Kozhikode on three counts under paragraphs 76(c) and ( e) of the Employees Provident Fund Scheme 1952 read with s. 14 of the Employees Provident Funds Act, 1952 for having failed to submit the returns, statements and other documents required by the Scheme in respect of three quarters July to

SUPREME COURT REPORTS

(1968] 2 S C.R.

September, 1961, October to December, 1961 and January to A Ma.rch, 1 962: . He. was fin.ed Rs. 25 on each count.

His application for rev1s1on m the High Court of Kerala was dismissed. He has now filed these appeals by special leave of this Court.

Ananda Bhavan Boarding & Lodging was started by him on December 6, 1949 and Hotel Brinda on January 15, 1959. He had a third establishment which went under the name of Anand Bhavan started on September 15, 1948 but it was sold by him in April, 1962. Complaints were filed against him by the Provident Fund Inspector, Trichur on December 16, 1962, alleging that he had contravened paragraphs 36(2)(a) and (b) and 38 of the Scheme.

Under these provisions he was required to submit within 15 days of the close of the month a return of the employees qualified to become members of the Fund for the first time during the preceeding month together with a declaration of such qualifying employees and to pay to each member his wages in respect of any period or part of tht period for \Vhich contributions were payable after deducting the employees' contribution from his wages which together with his own contribution as well as an administrative charge were to be paid to a Fund established under the Scheme.

He was also required to forward to the Commissioner within 15 days of the close of the month a consolidated statement.

The appellant contended that two employees were working in the Ananda Bhavan Lodging and 11 members in the Hotel Brinda. He claimed exemption for five years under the Act.

His further defence was that the three estalilishments formed different units and that 20 persons were not employed in any one of these places and that even if the three establishments could be deemed to a single establishment the number of employees reached the figure (which the Act puts down as the minimum) after Hotel Brinda was opened in January 1959 and he was entitled to an exemption under the Act for a further period of five years from January 15, 1959. Lastly, he pleaded that if there was a doubt on all these points the matter could only be decided after the doubt was cleared by an order of the Central Government under s. 19A of the Act.

His pleas were not accepted hy the High Court and the Magistrate and he has raised some of the contentions before us.

Before we comider the arguments which have been urged before 1ls we may refer to some of the provisions of the Act. The Employees Provident Fund Act !>.:came law on March 4, 1952 and the scheme was published on September 2, 1952.

A part of the Scheme became operative from October 31, 1953; other portions came into operation on subsequent dates .. It was not contended before us that the relevant part~ of the Scheme were not in force.

The Act applies to the whole of India and subject

. ,.

RAMAKRISHNA V; KERALA (Hidayatul/ah, J.) 821

to the provisions contained in s. 16 of the Act it applies (a) to a factory engaged in any industry specified in Schedule I in which 20 or more persons are employed and (b) to "any other establishment employing 20 or more persons or class of such establishments which the Government may by notification in the Official Gazette specify in this behalf". These estal:>lishments come within cl. (b) and are governed by the appropriate notification issued by the Central Governme)\t. No contention has been raised before us that the Act and the Scheme were not applicable to the kind of establishments here. Since the objection is that s. 16 excludes the establishments for a period we may read that section here :

"16. Act not to apply to certain establishments.- ( I) This Act shall not apply- ( a) to any establishment registered under the Cooperative Societies Act, 1912, or under any other law for the time being in force in any State relating to cooperative societies, employing less than fifty persons and working without the aid of power; or

(b) to .any othr establishment employing fifty, or more persons or twenty or more, but less than fifty, persons until the expiry of three years ht the case of the former and five years in the case of the latter, from the date on which the establishment is, or has been set up.

Explanation.-For the removal of doubt, it is hereby declared that an establishment shall ndt be deemed to be newly set up merely by reason of a change in its location. (2)

F Paragraph 26 (I) (a) of the Scheme shows the classes of employees entitled and required to join the Fund. It reads as follows :-

"26 (I )(a) Every employee employed in or in connection with the work of a factory or other establishment to which this Scheme applies, other than an excluded employee shall be entitled and required' to become a member of the Fund from the beginning of the month following that in which this paragraph comes into force in such factory or other. establishment, if on the date of such coming into force he has completed one year's continuous service or has actually worked for not less than 240 days during a period of twelve months or less in that factory or other establishment or in any other factory or other establishment to which the Act applies under the same employ, er, or partly in one and partly in the other."

q .• ') st:l'Rl!ME COURT REPORTS

[ 1968) 2 S.C.R.

Now the question in this case is that Hotel Brinda commenced only on January 15, 1959 and the number of employees then exceeded 20 for the first time. Under the provisions of s. 16 an exemption from the Act and the- Scheme is claimed for five years and it is submitted no offence was committed because the establishments even if taken together could not be subjected to the provisions till a period of five years had expired from January 15, 1959.

In support of this argument Mr. B. R. L. Iyengar emphasises that the use of the participle 'employing' in s. I ( 3) (b) shows some continuity of employment of 20 persons and not the first point of time when that number is rearhed. He contends that it is always intended that a period of 3 or 5 years, as the case may be, must elapse before the provisions o' the Act and the Schemes are made applicable.

This is an ingenious way of putting the matter but is not admissible. The language of s. 16 (I )(b) is very precise.

The last thirteen words of the clause 'from the date on which the establishment is or has been set up', show both cases where the establishment is new and where the establishment is old.

The word 'is' shows that a new establishment is meant and the words 'has been' show that the establishment existed before the number is reached.

If it was intended to apply the clause to new establishments the words 'is set up' would have been sufficient.

The construction sought to be placed would render the words 'has been' otiose. Further the scheme of Paragraph 26 quoted earlier relates to a period of service and this qualifying period may be in the past as well a. in the future.

The intention behind s. 16 read with paragraph 26 quite clearly shows that the period is intenJed to give a breathing time to new establishments. That reason does not hold when the establishment is already old and well founded.

The use of the participle is therefore immaterial.

Whether a present perfect tense or a participle be used the meaning is the same. Clause (b) of s. I ( 3) which uses the participle and clause (a) of the same section which employs the present perfect tense both merely describe the establishments and convey no different meanings.

The conclusion of the High Court was thus right. The appeals fail and will be dismissed.

V.P.S.

Appeals dismissed.

R. RAMAKRISHNA RAO

M. HIDAYATULLAH

K. S. HEGDE, JJ

Employees Provident Funds Act

s. 1(3)(b)

s. 16(1)

Employees Provident Funds Act, 1952

s. 1(3)(b)

s. 16(1)

Kerala High Court

B. R. L. Iyengar

A. G. Ratnaparkhi

Hidayatullah

Special 1st Class Magistrate, Kozhikode

s. 14

Employees Provident Funds Act, 1952

High Court of Kerala

Ananda Bhavan Boarding & Lodging

December 6, 1949

Brinda

January 15, 1959

September 15, 1948

Trichur

December 16, 1962

Ananda Bhavan Lodging

Central Government

s. 19A

March 4, 1952

September 2, 1952

October 31, 1953

India

s. 16

Schedule I

s. 16

Cooperative Societies Act, 1912

s. 16

B. R. L. Iyengar

s. 16

s. 16


i F

H ,.. -\

STATE OF MADHYA PRADESH & ORS.

SARDAR D. K. JADA V

January 25, 1968

[J. C. SHAH AND V. RAMASWAMI, JJ.]

Madhya Bharat Abolition of Jair Act Sr.1m-at 2008 (Act 28 of 1951), ss. 2(i)(ix). 3. 4, 5(c) and 17-Tanks and lvells clabned to be situated on 'occupied lan<l'-Question ll'hether exen<ption under s. 5(c) applies- Jssue whether can be decided hy Jagir Conrnzissioner under s. l 1-High Court's duty in l"rit proceedings to decide jurisdictional fGct on which the co1npe1ency of adn1ini:arative authority depends.

On the issuz of a notification under s. 3 of the Madhya Bharat Abolition of Jagirs Act Samvat 2008 (Act 28 of 1951 l aU the property in jagirs including Jagjr lands, trees tanks etc. stood vf.'stcd in the State under s. 4 of the Act.

Under s. 5(c) of tho Act all tanks. private weUs etc. in or on 'occupied land' as defined in s. 2(i) (ix) of the Act were excluded from vestin~. The Madhya Pradesh Land Revenue Code 1959 (Act 20 of 1959) in s. 251 provided that all tanks as d<scribed therein whi0 h were situated on unoccupied land and had not already vested in the State oner

the Abolition Act would. vest ahsolutely in the State Government with effect from 6th April. 1959: the sction also provided for compensation being paid in respect of such tanks.

Certain tanks belonging to the respondent were treated as vested in the Stare Government.

At first he claimed compensation for them. but later he also claimed before the Revenue authorities that the tanks \\-'ere situated on 'occupied land' a11d therefore under s. 5 ( c) of the Aholition Act they were exempt from the vesting provisions.

The Revenue authorities having decided against him, the respondent filed a writ petition before the High Court.

The High Court held that the question raised by the respondent under s. 5(c) should he decided by !he Jagir Con1missioner undc'r s. 17 of the Abolition Act and on this view quashed the orders of Revenue authorities.

The State appealed. along with olher appellants.

HELD : (i) The High Court was in error in holding that s. f7 of the Abolition Act was applicable to the case.

Section 17 is jncluded in Chapter III which deals with compensation which Government is liable to pay to every jagirdar whose jagir land has been resumed under s. 3 of the Abolition Act. It follows therefore that the inquiry made by the Jagir Commissioner under s. 17 on the question of title is only for the purpose of enabling him to pay compensation to the persons who in his opinion are entitled to receive it.

In other words the inquiry by the Jagir Commissioner or the decision of the State Government under s. 17 does not embrace within its scope any djspute as to whethei any particular property falls within s. 4(1) (a) read with s. 5 of the AboHtion Act and whether it has or has not in consequence .vested in the. State Government by notification issued under s. 3 of. the Abolition Act. [829 D-G]

{ii) However. if the respondent was right in .his contention that the tanks and wells were constructed on 'occupied Iand' belonging to the, jagirdar within the meaning of s. 5 ( c) of the Abolition Act, it was manifest that the appellants had no authority to take possession of those tanks and wells because. the title therein did not vest in the State Government in view of s. 5(c) which has an overriding effect on s. 4 of the Abolition Act.

II was 1herefore the duty of the High Court in the present case to decide the: jurisdictional 'fact as to whether the tanks and wells claimed by the respondent belonged 10 the Jagirdar wi1hin tl>o meaning of s. 5(c) of the Abolilion Act. and if the High Coun reached the conclusion that the ciaim of the respondent was substantialed iL would be open to the High Court ro 2rant a writ under Art. 226 of the Constitution directing the appellants to hnnd over possession of the aforesaid tanks and wells to the respondenl. [830 B-CJ

[Case remanded to the High Court accordingly.] Ra v. Slwreditch Assessment Commiue (1910) 2 K.B. 859 and White & Collin.• v. Minister of Hea/tli [ 1939) 2 K.B. 838. applied.

CIVIL APPELLATE JURISOICTION: Civil Appeals Nos. 1244 and 1245 of 1967.

Appeals by special leave from the judgment and orders dated C November 30., 1966 of the Madhya Pradesh High Court in Misc.

Pelition Nos. 184 and 183 of 1965 respectively.

B. Sen and /. N. Shroff, for the appellant (in borh the appeals).

S. K. Mehta, K. L. Mehta and A. G. Ratnaparkhi. for the respondents (in both the appeals).

D The Judgment of the Court was delivered by Civil Appeal No. 1245 of 1967

Ramaswami, J.

This appeal is brought, by special leave, from the judgment of rhe Madhya Pradesh High Court dated November 30, 1966 in Miscellaneous Petirion No. 183 of 1965 whereby the High Court allowed !he writ petition of the respondent and quashed two orders dated November 4, 1963 and June 11, 1964 of the Collector of Gwalior (Annexures VIII and XII respectively) and two orders of the Additional Commissioner, Gwalior Division dated February 19, 1964 and November 16, . 1964 ( Annexures X and XIV respectively) in so far as they pur- : ported to decide any question raised by the respondent under s. 5 ( c) of the Madhya Bharat Abolition of Jagirs Act, Samvat 2008

(Act No. 28 of 1951), hereinafter referred to as "the Abolition Act".

In Sarnvat 1885, the Ruler of the erstwhile Gwalior State conferred on Shri Bhavdeo Mishra-the predecessor-in-title of the respondent-the jagir of Mauza Siroli, situated in Pargana Gwalior. After the issue of the notification under s. 3 of the Abolition Act, all the property in the jagir including jagir lands, forests, trees, fisheries, wells, tanks, ponds etc. stood vested in the State under s. 4of ihe Abolition Act. Under s. 5(c) of the Abolition Act, all tanks, trees, private wells and buildings in or on occupied land belonging to or held by the Jagirdar o' any other person were excluded from vesting.

Section 2(l)(ix) of the Abolition Act defines "occupied land" as follows :

M. P. STAIE v. JADAV (Ramaswami, J.) 825

"(ix) 'Occupied land'. means land held immediately before the commencement of this Act on any of the following tenures, namely :

(a) Ex-proprietary;

(b) Pukhta Maurusi; B ( c) Mamuli Maurusi;

(d) Gair Maurusi;

and includes land held as Khud Kasht and land comprised in a homestead; ..

Section 3, 4 (I)( a). and 5 ( c) of the Abolition Act are reproduced c below:

3. Resumption of Jagir-lands by the Government.-

( l) As soon as may be after the commencement of this Act, the Government shall by notification in the Gazette, appoint a date for the resumption of all Jagirlands in the State.

(2) The Government may, by notification published in the Gazette, vary the date specified under sub-section (I) at any time before such date.

( 3) The date finally appointed under this section. as the date for the resumption of Jagir-lands is hereinafter referred to as 'the date of resumption'.

4. Consequences of the resumption of Jagir-lands.-.- ( l) As from the date of resumption notwithstanding anything contained in any contract, grant or pocument or in any other law, rule, regulation or order for the time being in force but save as otherwise provided in this Act-

( a) the right, title and interest of every Jagirdar and of every other person claiming through him ( including a Zamindar) in his Jagir-lands, including forests, trees, fisheries, wells, tanks, ponds,. water-channels, ferries, pathways, village-sites, hats, bazars and melagrounds and mines and minerals whether being worked or not, shall stand resumed to the State free from all encumbrances;

" ............................

5. Private wells, trees, buildings, house-sites and enclosures.-Notwithstanding anything contained in the last preceding section, ..............................

( c) all tanks, trees, private wells and buildings in or on occupied land belonging to or held by the Jagirdar or any other person shall continue to belong to or, be held by such Jagirdar or other person."

After lhe abolilion of jagirs under the Abolition Act, proceedings were iniliated for delermining the compensation payable to lhe respondent and the same was determined at a sum of Rs. 22,293/- and odd out of which certain loans were deducted and the amount of Rs. 3,586/- and odd was paid. The Madhya Pradesh Land Revenue Code, 19.39 (M.P. Act No. 20 of 1959) came into force 0n October 2, 1959 and s. 251 thereof reads as follows :

"Vesting of tanks in State Government.-( I) All tanks situ<'.led on unoccupied land on or before the date of coming into force of the Act. providing for the aboli1ion of the rights of intermediaries in 1he areas concerned and over which members of the village community were, immedialely before such date, exercising right~ of irrigation or nis1ar, shall, if not already vested in the State Government, vest absolutely in the State Governmen1 wilh effect from the 6th April, 1959 :

Provided lhat nothing in 1his section shall be dee•ned to affect any right of a lessee in the tank under a lease subsisting on lhe date of vesting of the tank which shall be exercisable to 1he extent and subject to the lerms and conditions specified in the lease :

Provided further that no tank shall vest in the State Government. unless-

( a) after making such enquiry as he deems fit, the Collector is satisfied 1hat the tank fulfils the conditions laid down in this sub-section; and

( b) notice has been served on the parties inlerested and opportunity given to them for bein_g heard.

(2) Any person claiming in any such. tank any interest other than the right of irrigation or nistar, may, within a period of four years from the date of vesting under sub-section (I). make an application in the prescribed form to the Collector for compensation in respect of his interest.

(3) Such compensation shall be 15 times the land revenue assessable on the land covered by the tank and

for purposes of assessment such land shall be treated as irrigated land on the same quality as the adjoining land.

( 4) The compensation as determined under subsection ( 3) shall be paid by the Collector to the person or persons proved to his satisfactbn to be owning interest in the tank concerned. ·

" On April 5, 1961, the respondent made an.application to the Collector, Gwalior under s. 251 of the M.P. Lmd Revenue Code, 1959, claiming compensation for the tanks which, according to the respondent, were built by the respondent and his predecessor-in-title over an area of 1,679 bighas and 18 biswas of land.

By his order dated April 24, 1963, the Sub-Divisional Officer

determined the amount of compensation at Rs. 11,512/- and odd but by his subsequent order dated May 28, 1963, the Sub-Divisional Officer suo motu cancelled his previous order dated April 24, 1963. The respondent preferred an appeal before the Collector of Gwalior wh<;>, by his order dated November 4, 1963 dismissed the appeal of the respondent holding that the property claimed as tanks was really not of that description as all that was done was to cause temporary obstruction to the flow of waters by creating bunds and the case did not fall within the purview of s. 251(1) of the M.P. Land Revenue Code, 1959 and no compensation was payable. The respondent preferred a second appeal before the Commissioner, Gwalior Division who dismissed the appeal, holding that under s. 251 compensation could not be claimed with regard to the so-called tanks which were situated on 'occupied land'.

On July 4, 1963, the respondent made an application to the Co1lector of Gwalior stating that he was entitled to paymen! of compensation if the tanks had vested in the. State Government.

The application was dismissed by the Collector on June 11, 1964. Thereupon the respondent moved the High Court of Madhya Pradesh for grant of a writ under Art. 226 of the Constitution to quash the two orders dated November .4, 1963 and June 11, 1964 of the Collector of Gwalior ( Annex4res VIII and XII) and the two orders dated February 19, 1964 and November 16, 1964 of the Additional Commissioner, Gwalior Division (Annexures X and XIV). The writ petition was opposed by the appellants on the ground that the tanks claimed by ihe respondent were really no tanks at all and, in any case, were not on ;'occupied land' within the meaning of s. 5 ( c) of the Abolition Act and the tanks and wells had vested in the State under s. 4 (I)( a) of the Abolition Act. By its judgment dated November 30, 1966, the High Court allowed the writ petition and quashed the four orders aforesaid on the ground that the question raised by the respondent under s. 5 ( c)

of the Abolition Act should be decided by the Jagir Commissioner A in the manner .required by s. 17 of the Abolition Act.

It is necessary at this stage to reproduce ss. 8, 15, 17 and 18 of the Abolition Act which arc to the following effect :

"8. Dµty to pay compensation.-( 1) Subject to other. provisions of this Act the Government shall be B liable to pay to every Jagirdar whose Jagir-land has been resumed under Sec. 3, such compensation as shall be determined in accordance with the principles laid down in Schedule I.

( 2) Compensation payable under this section shall be due as from the date of resumption and shall carry simple interest at the rate of 2 i per cent per annum from that date up to the date of payment :

Provided that no interest shall be payable on any amount o[ compensation which remains unpaid for any default of the Jagirdar, his Agent or hi~ representativein-interest."

"15. Payment of compensation money.-( 1) After the amount of compensation payable to a Jagirdar under Sec. 8 is detennined under clause ( 3) of Sec. 13 and the amount deducted from it under Sec. 14, the balance shall be payable in maximum ten annual instalments.

(2) The amounts determined under clauses (c),

(d) and (e) of Sec. 13 shall be deducted and paid annually to the persons entitled thereto, out of the annual instalments referred to in sub-section ( 1) and the remaining amount of the iIJ>talment shall be payable by the Government to the Jagirdar.

" ........................................

"17. Questions of title.-lf, during the course of an inquiry by the Jagir Commissioner, any question is raised, in respect o[ a Jagirdari title to, or right in, Jagir-lands resumed under Sec. 3, and such question has not already been determined by the Government, the Jagir Commissioner shall proceed to enquire into the merits of such question and refer the matter for decision to the Government whose orders shall be final."

"18. To whom compensation shall be payable after the death of a Jagirdar. If any Jagirdar to whom compensation money is payable under this Act dies before the full payment of such compensation money to

H -

H ...

him, such compensation money as may remain pafable to. him under this Act, shall be payable--ro such of his heirs or successors as may be declared py a competent Court entitled to receive the same, according to the personal law by which the Jagirdar is governed."

On behalf of the appellants learned Counsel put forward the argument that the High Court was in error in holding that s. 17 of the Abolition Act was applicable to the present case and that it was the function of the Jagir Commissioner alone tO inquire whether the claim of the respondent under s. 5 ( c) was well-founded on merits and refer the matter for the lif\.al decision of the Government under s. 17 of the Abolition Act. In our opinion the argument put forward on behalf of the appellants is well-founded and must be accepted as correct. It is manifest that under s. 17 of the Abolition Act only those disputes which pertain to the Jagirdari title or 'right in jagir lands already resumed under s. 3 of the Abolition Act, can be raised.

The section also contemplates that the disputes must be raised during the course of an inquiry for assessment of compensation by the J agir Commissioner. It should be noticed that s. 17 is included in Ch. III which deals with compensation which the Government is liable to pay to every jagirdar whose jagir land has been resumed under s. 3.

It follows therefore that the inquiry made by the Jagir Commissioner under s. 17 on. the question of title is only for the purpose of enabling him to pay compensation to the person who in his opinion is entitled to receive it.

In our opinion, the scope of the inquiry under s. 17 only relates to disputes with regard to rival claimants to jagirdari title or right in jagirdari lands already resumed under s. 3 of the Abolition Act.

In oth1<r words, the i11quiry by the Jagir Commissioner or the decision of the State Government under s. 17 does not embrace within its scope any dispute as to whether any particular property falls within s. 4 ( 1)

(a) read with .s. 5 of the Abolition Act and whether it has or has not in consequence vested in the State Government by the notification issued under s. 3 of the Abolition Act It is also necessary to add that the inquiry contemplated under s. 17 by the Jagir Commissioner relates to compensation to be paid to the jagirdar whose jagir is vested in the State Government and once the compensation is determined and paid, no further inquiry. under s. 17 is c.ontemplated. We are accordingly of .the opinion that the High Court was in error in holding. that s, 1.7 of the Abolition Act is applicable to the case and that the dispute raised by the respondent should have been determined in accordance with the procedure envisaged in s. 17 of the Abolition Act.

But this does not necessarily mean that the respondent is left without any remedy for the redress of his grievance. If the U Sup. Cl/68-9

830 SUPREME COURT llEPORTS (1966] 2 s.C.R.

respondent is right in his contention that the tanks and wells were A constructed on 'occupied land' belonging to the jagirdar within the meawng of s. 5 ( c) of the Act it is manifest that the appellants have no authority to take possession of those tanks and wells because the title therein does not vest in the State Government in view ot s. 5 ( c) which has an over-riding effect on s. 4 of the Abolition Act. lt was therefore the duty of the High B Coun in the present case to decide the jurisdictional fact as to whether the tanks and wells claimed by the respondent belonged to the Jagirdar within the meaning ot s. 5{c) of the Abolition Art and ii the High Court reached the conclusion that the claim of the respondent was substantiated it would be open to the High Court to grant a writ under Art. 226 of the Conslitution directing C the appellants to hand over possession of the aforesaid tan ks and wells to the resportdents.

It is well-established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the Htgh Court is entitled, in a proceeding for a writ, to determine upon its own independent judgment whether or not that D finding is correct. The matter has been very put by Farwell, L. J. in Rex v. Shoreditch Assessment Committee( 1 ) as follows:

"The existence of the provisional list is a condition precedent to their jurisdiction to hear and determine, and as the claimant is entitled to require them to hear and determine, they cannot refuse to take the steps neces>ary to give rise to such jurisdiction; if they do, their refusal may be called in question in the High Court.

No tribunal of inferior jurisdiction can by its own decisio:1 finally decide on the question of the existence or extent of such jurisdiction : such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiciion which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise.

Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existenc~ of the limit necessitates an authority to determine and enforce it : it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to <letermine such limit at its own will and pleasure-- such a tribunal would be autocratic, not limited-and it i! immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact; a Court ----·------

(!) (1910] 2 K. B. 859, 879.

' .

- '

F ..

H .. .

with jurisdiction confined to the city of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the ward of Chepe."

The same principle was enunciated by the Court of Appeal in White & Collins v. Minister of Health('). The question debated in that case was whether the High Court had jurisdiction to revie'h'. the finding of the administrative authority on a question of fact.

It appears that Part V of the Housing Act, 1936, enabled the local. authority to acquire land compulsorily for the provision of houses for the working classes, but s. 7 5 of the Act provided that nothing in the Act was to authorise the compul

sory acquisition of land "which at the date of the compulsory purchase forms part of any part, garden or pleasure ground or is otherwise required for the amenity or convenience of any house".

In accordance with the provision of this part of the Act, the Ripon Borough Council made an order for the compulsory P.urchase of 23 acres of land, it being part of an estate in Yorkshire called Highfield, consisting of a large house and 35 acres of land surrounding it.

The owners served notice of objection to the order as being contrary to s. 75 and the ground of objection was that the land was part of a park and. was required for the amenity or convenience of the house. The Minister of Health directed a public inquiry, and after holding the inquiry and taking evidence, the Chairman duly made his report to the Minister, who thereupon confirmed the oder. It was held by the Court of Appeal that the High Court had jurisdiction to review the Minister's finding and since the land in question was part of the park of Highfield, the order of compulsory purchase was quashed. At page 855 Luxmoore L.J. stated :

"The first and the most important matter to bear in mind is that the jurisdiction to make the order is dependent on a finding of fact; for, unless the land can be held not to be part of a park or not to be required for amenity or convenience, there is no jurisdiction in the borough council to make, or in the Ministe.r to confirm, the order. In such a case it seems almost selfevident that the Court which has to consider whether there is jurisdiction to make or cc!lfirm the order must be entitled to review the vital finding on which the existence of the jurisdiction relied upon depends. If this were not so, the rigQ.t to apply to the Court would be illusory." For these reasons we allow this appeal, set aside tile judgment of the Madhya Pradesh High Court dated November 30,

1966 in Miscellaneous Petition No. 183 of 1965 and the case is

(!) [1939] 2 K.B. 838.

832 SUPREME COURT Rl!POllTS (1968] 2s.C.R.

remanded to the High Coun for deciding it afresh in accordance with the directions given.

It will be open to the High Court to take such further evidence--oral and documentary-as the parties may decide to give on the points at issue. The parties will bear their own costs upto this stage.

Civil Appeal No. 1244 of 1967

The material facts of this case are almost similar to those in Civil Appeal No. 1245 of 1967 and for the reasons given in that judgment, we hold that this appeal should be allowed and the case should be remanded to the High Court for being decided afresh in accordance with the directions given in that judgment.

The parties will bear their own costs upto this stage.

G.C.

Ar1peals allowed and cases r1manded.

• •

STATE OF MADHYA PRADESH & ORS

January 25, 1968

C. SHAH

V. RAMASWAMI, JJ.

Madhya Bharat Abolition of Jair Act

ss. 2(i)(ix)

s. 5(c)

s. 3

s. 4

s. 5(c)

s. 2(i)

Madhya Pradesh Land Revenue Code 1959

s. 251

6th April.

s. 5

s. 5(c)

s. 17

Section 17

s. 3

s. 17

s. 17

s. 4(1)

s. 5

s. 3

s. 5

s. 5(c)

s. 4

s. 5(c)

Art. 226

CIVIL APPELLATE JURISOICTION

N. Shroff

S. K. Mehta

K. L. Mehta

A. G. Ratnaparkhi

Ramaswami

November 30, 1966

s. 5

Gwalior

Bhavdeo Mishra

s. 3

s. 4

s. 5(c)

Section 2(l)(ix)

Pukhta Maurusi

Mamuli Maurusi

Gair Maurusi

Section 3, 4

Jagirdar

October 2, 1959

s. 251

April 5, 1961

s. 251

Lmd Revenue Code, 1959

May 28, 1963

April 24, 1963

November 4, 1963

s. 251(1)

Land Revenue Code, 1959

Gwalior Division

s. 251

July 4, 1963

June 11, 1964

High Court of Madhya Pradesh

Art. 226

s. 5

s. 4

s. 5

s. 17

ss. 8, 15, 17 and 18

Sec. 3

Schedule I

Sec. 8

Sec. 13

Sec. 14

Sec. 13

Sec. 3

s. 17

s. 5

s. 17

s. 17

s. 3

s. 17

s. 3

s. 17

s. 17

s. 3

s. 17

s. 4

s. 5

s. 3

s. 17

s. 17

s. 17

s. 5

s. 5

s. 4

s. 5

Art. 226

Farwell

London

s. 7

Ripon Borough Council

Yorkshire

s. 75

Luxmoore

Madhya Pradesh High Court

November 30,

1966