270 ,. - '

. RAMESH HIMMATLAL SHAH

HARSUKH.JADHAVJI JOSHI

April 25, 1975.

[A. ALAGIRISWAMI, P. N. B!IAGWATI AND P. K. GOSWAMI, JJ.]

Maharashtra Co-operative Societies Act1 1960 Sections 29,31,47 and i46(a), 1961, Rule 24 and Bye-Laws 9 and 71-D right of a judgn1e11J-dcbtor to occupy a fiat owned by a housir..g society, if fiablc to attac/unent and su!e ill execution of a decree against hin1.

Code of Ciril Procedure, Section 60-Riglit to occupy a fiat owr, ed /Jy a ca-operari11e housing society, 1.'f a species of property.

The appellant is the decree-holder. He obtained a money decree agains1 the respondent judgment-debtor and took a warrant of attachment of fiat No. 9 of Paresh Cooperative Housing Society Limited at Santacruz, Bombay. This flat was attached on August 8, 1970 and a warrant of attachment was served on -the judgment-debtor wh.ile be was in jail in Rajkot.

In due Cot,_rse -a sale proclamation was also issued in respect of the flat while the judgment-debtor was yet in jail. At this stage of the proceedings, the judgmentdebtor's brother, Hasmukh J. Joshi took out a chamber summons challenging the execution on the ground that the fiat did not belong to the judgment-debtor but belonged to him and to the judgment-debtor's wife and that the attachment should be raised.

His chamber surnmons was made absolute but in appeal the order was set aside and the matter was remanded. The afore!faid chamber sumn1ons was, however, finally dismissed on _September 30, 1971.

Hasmukh did not take any further action against the rejection of his claim to the property. After coming out of the jail, the: judgment-debtor filed a suit some time in 1972 to set aside the decree.

He, however, could not se\; ure an order for injunction to prevent the eXecutic, n of the decree and the suit __ is pending.

The flut was offered for sale and was purchased i, n auction hy One Bhupendra N. Shah for a sum of Rs. 34,000 / ··.

The sale, however, is not yet confirmd. Subsequently a new plea was taken by the judgment--debtoc. This time he filed a chamber summons on March 28, 1972, praying for the dismissal of the execution petition filed by the decree-holder 3Dd for setting aside the w41-rint of attachment and proclamation of sale on the ground that the flat being a fiat in a cooperative housing society was not liable to attachment and sale.

It was also stated that he had not saleable interest in the said property under section 60, Civil Procedure Code, and therefore, it was not liable to attachment.

The Judge, City Civil Court, Bombay, dismissed the chamber summons. The learned single Judge, Bo1nbay High Court, however, in appeal allowed the claim and made the summons absolute by directing that the attachment and sale of the flat being Hlegal be set aside.

The appellant preferred a Letters Patent Appeal before the Bombay High Court without success and the decision cif the learned single Judge was affirn1ed.

Hence this appeal by special leave.

It was contended for the appellant that the right of the judgment-debtor, who claims the right to occupation of flat No. 9, is liable to atta.chn1ent and sale in execution of a decree.

The respondent contended that section 31 of the ~Iaharashtra Co-operative Societies Act, 1960, completely bars attachment and saJe of the flat in question in execution of thl! decree. lt \Vas also contended for the respondent that section 60, Civil Procedure Code does not specify that this species of property is liable to attachment. '

A11owing the appeal, HEW : (i) While section 29(2) refers to transfer of a member's share or his interest in the capital or property of any society, section 31 in contrast speaks of "the share or interest of a men1ber in the capital of a society". The Act, therefore, makes a clear distinction between the share or interest in the capital and share or interest in property of the society,

[2780-E]

(ii) The right or interest to occupy is a species of property.

There is

R. H. SHAH "· H. J, JOSHI (Goswumi, J.) 271:'

nothing in the language of section 31 lo indie<1te that the right to ocoupation

J.. wbich is the right to be sold in auction is not attachable in executio11 of the decree, There is nothing in section 31 to even l'emotely inclQde a prohibition against attachment or. sale of the aforesaid right to occupation 'of the fiats.

The o, i; tly restrictions under section 29(2) are that the memr may.not tranlllftr

his interest in the property prior to one year nd the transfer is made to. an ex.i!ting member of the society or to a person whose application for membership been accepted by the Society, It is !rue that bye-Jaw 71D .ays tlmt

a meinber to whoma tenement is allowed, shall not assign or underlet, vacate B or. part with the possession of the tenement or any part thereof without the prev'ious con.sent in writing of the Managing Committee, but there is nothing to show that contravention of this bye-law ma!t.:_es the assignment vqid under the. Act ~1nlik.e in the case of a transfer being void under section 47(3).

Section 29 read with rule 24 shows that there is no prohibition as ::; uch against transfer of a share to a member or even lo a non-member if he consenL 1'0 be :i mcrri.ber and makes an application for membership by purchasing five shares as Provided under bye-law 9. There is no reason to think that there is C any question of refusal of membership of the Society to a non-membe-r if he' is qualified otherwise and makes an appropriate application in which case

thf'. transfer of shares will be operative and tJ:ius the assignment of the right to occupation will hold good. [278F-H, 279-B]

(iii) Section 60 of the Civil Procedure Code is not exhaustive ns such.

It also refers to any other saleable property, movable or immovable, whether the san1e be held in the name of the judgment-debtor or by another person on D his behalf. The right to occupation of a fiat is property both -attachable and Sfl1eable.

Specific non-inclusion of a particular species of prbperty under section 60, is therefore, not of any consequence if it is saleable otherwise.

(280-F-GJ

CIVL APPELLATE JURISDICTION ; Civil Appeal No. - 1539 of 1974. .

A!>peal by special leave from the Judgment and Order of the High , Court of Bombay in LPA No. 80 of 1972. .

B. R. Zaiwala, D. R. Zaiwala, K J. John and J. B. Dadachanji, for the Appellant. . . .

P. K. Chatterjee and D. P. Mukherjee, for the Respondent.

O. L. Sangh; and H. K. Puri, for Shri Suryakant N.

Gangani (Purchaser)

.The Judgment of the Court was. delivered by

GOSWAMI, J.-This appeal in. forma pauperis rainses an impor-. G

tau~ question of Jaw : Is a flat m a te, nant co-partnership housing

society under the Maha; ashtra Cooperative Societies Act, 1960 liable to .attachment and sale m execution of a decree against a member in ll'hooe favour or for whose benefit the same has been allotted by the society ? ·

. We may briefly note the tacts. : H

.. The appellant is the . decree-holder. He obtained a money decree. against the respondent judgment-debtor and took a warrant of attachment of ffat No. 9 of Pareh Cooperativ~ Housing Society Limited at .Santacruz, Bombay. Tius flat (descnbed as ownership. flat in common parlance) was attached on August 8, 1970 and. a warrant

~:-<

of attachment was served on the judgment-debtor while be was m jail in Rajkot.

In due course a sale proclamation was also issued in respect of the flat while the judgment-debtor was yet in jail.

At this stage of the proceedings, the judgment-debtor's brother, Hasmukh J.; Joshi (for brevity Hasmukh) took out a chamber summons challenge ing the execution on the ground that the flat did not belong to the judgment-debtor but belonged to him and to the judgment-debtor's wife and that the attachment should be raised. His chamber summons was made absolute but in appeal the order was set aside and the matter was remanded.

The aforesaid chamber summons was, however, finally dismissed on September 30, 1971.

Hasmukii did not take any further action against the rejection of his claim to the property.

After coming out of the jail, the judgment-debtor filed a suit some time in 1972 to set aside the decree.

He, however, could not secure an order for injunction to prevent the execution of the decree and the suit is pending.

The fiat was offered for sale and was purchased in auction by one Bhupendra N. Shah for a sum of Rs. 24,000. The sale, however, is not yet confirmed. Subsequently a new plea was taken by the judgment-debtor.

This time he filed D a chamber summons on March 28, 1972, praying for the dismissal of the execution petition filed by the decree-holder and for setting aside the warrant of attachment and proclamation of sale on the ground that the flat being a flat in a cooperative housing society was not liable to attachment and sale. It was also stated that he had no saleable intere•st in the said property under section 60, Civil Procedure Code, and therefore, it was not liable to attachment.

The E Judge, City Civil Court, Bombay, dismissed the chamber summons.

The learned single Judge, Bombay High Court, however, in appeal allowed the claim and made the summons absolute by directing that the attachment and sale of the flat being illegal be set aside.

The appellant preferred a Letters Patent Appeal before the Bombay High Court without success and the decision of the learned single Judge was affirmect.

Hence this appeal by special leave.

The flat in question is admittedly owned by the Paresh Co()J'el'ative Housing Society Limited (briefly the Society).

Originally this fiat stood in the name of one Ramesh Hariram Chande and his wife.

It is not disputed before us and it has been so held by the court in the claim case by the judgment-debtor's brother that the respondent G purchased the flat benami in the. name of his brother Hasmukh and his wife Shashikala.

Although, therefore, the respondent is not a registered holder of the fiat, it is clear that the flat is held by :his brother and his wife on behalf of the respondent.

This is to be noted as section 60, Civil Procedure Code, reaches a benami holding ..

It may also be noted that the respondent is now fighting the case on the basis that the right to occupy the flat in question is his property ff which is not liable to attachment and sale. We should also note here that after the High Court invalidated the attachment and sale, the flat was purchased by one Suryakant N. Sangani (briefly Surya kant) having acquired the shares in the Society from Hasmnkh and' Shashikala. It is said that on the joint application of Shashikala .and Suryakant, the shares were transferred to the latter on or abour May 15, 1974. ·

The appeal came up for hearing earlier and when it was found that the respondent was not represented the court issued notice to the purchaser, Suryakant and also directed for appointment of an amicus

curiae. Mr. Chatterjee has now appeared before us as amicus cur~

and the purchaser has also entered appearance through Mr. Sangh1.

Ultimately, however, we did not hear Mr. Sanghi, as we are concerned in this appeal only with the 'question of attachability and saleability which is a condition prior to the . purchase of the property by Bbupendra N. Shah. Mr. Sanghi,. therefor<:, had to retire from the appeal.

The point that arises for consideration m this appeal, as stated earlier, is whether the right of the judgment-debtor, who claims the right to occupation of fiat No. 9, is liable ttl attachment and sale in execution of a decree.

Before we proceed further it is necessary to go through the relevant provisions of the Maharashtra Cooperative Societies Act, 1960 (briefly the Act}. The Maharashtra Cooperative Societies Rules, 1961 (briefly descri0ed as the Rules} and the Byelaws of the Society.

The Act was passed in the year 1961 to consolidate and amend the law relating to cooperative societies in the state of :Maharashtra.

Section 2 of the Act contains the definitions. By section 2(5} " 'by-Jaws' means by-laws registered under this Act and for the time being in force, and includes registered amendments of such by-laws".

By section 2 (11} "dividend" means the amount paid, out of the profits of a society, to a member in proportion to the shares held by him.

By section 2(16} '"housing society' means a society the object of which is providing its members with dwelling houses". By section 2(9} "'member' means a person joining in an application for the registration of a cooperative society which is subsequently registered, or a person duly admitted to membership of a society after registration, and includes a nominal, associate or sympathiser member".

By section 2(19} (b} "'associate member' means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate".

By section 2(19} (c} " 'nominal member' means a person admitted to membership as such after registration in accordance with the by-law''. By section 2(21} " 'prescribed' means prescribed by rules". By section 2(31} "'working capital' means funds at the disposal of a society inclusive of paid up share capital, funds built out of profits, and money raised by borrowing and by other means."

. By sectin "a society, which has as its objects the promotion of the economic mterests or general welfare of its members or of the

blic, i? accord8:flce with .c?Oerative principles, or a soiety estab- H hshed with the. ob1ect of fac1htatmg the operations of any snch society may be registered under this Act. '

Proided that, no society shall .be registered if if is likely to be econOtrucally unsound, or the registration of which may have an adverse effect on development of the cooperative movement".

··~·- .,

Chapter Ill of the Act deals with members and their rights and lia])ilities.

Section 22 with which this chapter opens provides .how a person may become a member.

For example by section 22(1A) subject to the provisions of section 24, an individual competent to contract under .the Indian Contract Act may be admitted as a member.

By section 23 (l) 'No society shall, without sufficient cause, refuse admission to membership to any person duly qualified therefor under the provisions of this Act and its bye-Jaws". By sub-section (2), "Any

person aggrieved by the decision of a society, refusing him admission to its membership, may appeal to the Registrar" and the decision of the Registrar under sub-section (3) shall be final.

By section 25 "a person shall cease to be a member of a society on his resignation from the membership thereof being accepted, or on the transfer of the w):iole of his share or interest in the society to another member, or on his death, or removal or expulsion from the society".

By section 26, "no person shall exercise the right of a member of a society, until he has made such payment to the society in respect of: membership, or acquired such interest in the society, as may be prescribed by the rules, or the by-laws of such society".

Section 28 contains certain restrictions on holding shares.

Two of the material sub-sections of section 29 which are jmportant and with which we are concerned may be set out :

29(1). "Subject to the provisions of the last precedinl',

section as to the maximum holding of shares and to any rules made in this behalf, a transfer of, or charge on, the share or interest of a member in the share capital of a society shall be subject to such conditions as may be prescribed.

( 2) A member shall not transfer any share held by him or his interest in the capital or property of any society, or any part thereof, unless :-

(a) he has held such share or interest for not less than one year ;

(b) the transfer is made, to a member. of the society or to a person whose application for membership has been accepted".

Section 31 may also be set out :-

"The share or interest of a member in the capital of a society, or in the Joan-stock issued by a housing society, or in the funds raised by a society from its members by way of savings deposit, shall not be liable to attachment or sale under any decree or order of a Court for or in respect of any debt or liability incurred by the member ; and accordingly, neither the Ofiicial Assignee under . the Presidency-towns Insolvency Act, 1909, nor a Receiver under the Provincial Insolvency Act, 1920, nor any such person , or authority under al)y corresponding lw for the time being in force, shall beentitled to, or have any claim. -OD, such share .or interests."

''' R. H. sllAH ~- H.' J. JOSHI iGoswami, !.) i7_75

Section 4 7 so far as material for our purpose may be quoted

.·· A

47(1). "Notwithstanding .anything i, n any other law for the time being in force, brit subject to any prior claim of Government in respect of land revenue or any money recoverable as land revenue and to the provisions of section 60 and 61 of the Code of Civil

 .. B Procedure, 1908.

(b) any oustanding demands or dues payable to a society by any member or past member or deceased member, in respect of rent, shares, loans or purchase money or any other rights or amou11ts c payable to such society, shall be a first charge upon his interest in the immovable property of the society".

(2) No property or interest in property, which is subject to a charge nuder the foregoing sub-section, shall be D transferred in any manner without the previous permission of the society; and such transfer shall be subject to such conditions, iLany, as the society may impose.

(3) Any transfer made in contravention of sub-section

(2) shall be void".

Section 165 contains the rule making powers.

The last section 167 provides that "for the removal of doubt, it is hereby declared that the provisions of the Companies Act, 1956, shall not apply to societies registered or deemed to be registered, under this Act".

F We may now turn to the relevant Rules. By rule-9 "wheu a society has been registered the by-laws of. the society as .approved and registered by the Registrar shall be the bye-laws of the society".

Rule 10 contains classification and sub-classification of societies and we are concerned with the fifth class mentioned therein, namely, the 'Housing Society' which again is sub-divided into three categories and we are concerned in this appeal with the G second category, namely, 'Tenant Co-partnership Housing Society', which is described therein as an example of "Housing Societies which hold both lands al)d buildings either on lease hold or free hold basis

and allot them to their members".

Chapter III of the Rules deals with members and their rights and liabilities.

Rule 19 contains conditions to be complied with for H admission for membership.

Rule 24 provides for the procedure for transfer of shares.

Rule 28 provides for expulsion of members and expulsion from membership may involve forfeiture of shares held by the member.

We may now notice some of the material Bye-laws of the Society.

A Bye-Jaw 6. "All persons permanently residing in Bombay city and suburban area and who have signed the application for registration, are original members. Other members Jll\lY be admitted by the General .Bouy.

Every person on applying for membership shall d.cposit Re. 1 as entrance fee and. the value of at least five shares for which he shall receive a copy of the Bye-laws.

In case where an application is refused, the deposit shall ordinarily be returned".

 6(1). "The General Body may admit any new members other than the promoters subject to the applicants satisfying the qualifications for membership as prescribed under the bye-laws".

(2) "TI1e General Body shall not admit members exceeding the number of tenements or plots available for allotment".

(3) The General Body alone shall be comi; i:etent to allot tenements to the members on the basis of policy framed by it for such allotment".

7 (a). "A person may be admitted as a nominal member on payment of Re. 1 only as entrance fee for the purposes of occupying a shop/ godown/ garage m the society.

A nominal member shall not exercise any right of membership or receive any advantage, or benefit or dividend, etc."

7(b). "A subletec, a licencee or a caretaker may also be admitted as a nominal member of the Society on payment of Re. 1 as entrance fee. Such member shall not exercise any right of membership or receive any advantage or benefit or dividend, etc.".

8 (a) . "Ko person shall be admitted as a member of the Society who already owns a house, a plot or a ilat in Bombay city and suburban area, in his own name or in the name of any of his dependents or of his family members, such as wife/husband, children, etc. and whose need of a house, a plot or a fiat in the' opinion of the General Body are not considered pressing or deserving ...... "

10. "No person shall exercise the rights of a member of

the Society until he is admitted as such as laid down in Bye-law No. 6 and holds not less than five fully paid shares in the Society and his name has been entered in the Register of Members". ·

Chapter Vil of the Bye-laws provides for transmission of interests.

Bye-law 14 01>11tains how a nomination has to be made, how a member may nominate a person to whom his share or intcrcst in the society or so much thereof as is specified in such nomination

shall be transferrcc; I at h.i~ decease, .etc. Byc-la.w 15(1) provides .that /. "on riving satisfactory pr()Of of the. death of a member, the' Generai' Body may tr1msfer the share or the. interest of the member to the person or persons nominated or if there is no. person so nominatecl to such person as may appear to the Ge11eral Body to be the heir or the legal representative of the member or to pay such a sum representing the value of such nominator's share or interest as oete.r- !l mined in accordance with the Rule 23 of the M.C.S. Rules 1961 deducti11g all sums due to the Society from the nominator ..... .'' Under Bye-law 15 ( 4) where a share or shares were issued to a member by virtue of his being a tenant or a lessee what would happen on the death of such a member is provided for.

Chapter XX deals with tenants.

Bye-law 71 with which it opens C says "no member shall be a tenant of the Society unless he subscribes to such nnmber of shares as the Managing Committee prescribesi'.

71A, "Whenever a member to whom a dwelling house/ tenement or flat has been allotted by the society does not require it for his own use for any particular period, he may hand it over to the society for using the same in such manner as it may consider best".

71B. "The society may offer the dwelling house/tenements or flats falling vacant in its possession in terms of

the provisions of bye-law No. 7HA) above, to any E person in its discretion _for temporary occupation for the period indicated by the original allottee on such clear understanding provided that:

(i) It shall give preference to such person as has already been enrolled as member of the society in terms of the provisions in bye-law but who could not be allotted a dwelling house/tenement or fiat . by it;

(ii) It shall enroll the person to whom the dwelling house/tenement or flat is proposed to be allotted as a nominal member if he is not already a mem ber of the society.

(iii) The payments received for such temporary occupation shall be credited to the account of the .original allottee and be apportioned towards satisfaction of the dues and the demands of the society out- •tanding against him under these Bye-laws and the tenancy regulations.

71D. "A member to whom a tenement is allotted shall occupy it himself and shall not assign, under!et, vac'ate. or pan with the possession of the. tenement . any part thereof without .the previous. consent in writ ·

ing of the Managing Committee." ·

<~--·

27&

72. "No dwelling house offered on lease shall be taken ·

by persons who are not members of the Society un" less no member is willing to take it".

Form A to the Bye-laws contains "regulations relating to. tenancies to be granted by the Society to members in respect of houses held by tbe Society".

From a review of the foregoing provisions the position , ith reference to the particular Society is as follows :

There is no absolute prohibition in the Act or in the Rules or in the Bye-laws prohibiting transfer of interest of a member in the C property belonging to the Society.

Tne only transfer which is void under the Act is one made in contravention of sub-section ( 2) of secti'On 47 [see section 47(3)]. We have not been able to find any ether provision anywhere to the same effect.

In :he scheme. of the provisions a dichotomy is seen between share or interest . in the capital and interest in property of tbe Society.

While section 29(2) refers to transfor of a member's share or his interest in tbe capital D or property of any society, section 31 in contrast speak~ of "the

share or interest of a member in the capital of a society''.

The Act, therefore, makes a clear distinction between the share or interest in the capital and share or interest in property of tbe Society. We have also noticed that the Act does recognise interest in the immovable property of the Society as well [see section 4 7 (I) (b)]. We have E seen the qnalifications for membership.

There is no reason to snppose that if the qualifications under the Bye-laws are fulfilled an application for membership may be rejected. It is admitted that the fiat is owned by the Society and the judgment-debtor has a right or interest to occupy the same.

F This right or interest to occupy is a species of property.

We have to consider wh1:ther this right to the particular property is attachable and saleable in execution of the decree against the judgment-debtor.

It is contended by Mr. Chatterjee, amicus curiae, that section 31 of the Act completely bars attachment and sale of the said property in execution of the decree.

We have already pointed out the difference in language between section 29 and section 31 and also made reference to section 47(1) (b) in that connection.

There is nothing in G the language of section 31 to indicate that the right to occupation which is the right to be sold in auction is not attachable in execution of the decree.

There is nothing in section 31 to even remorely include a prohibition against attachment or sale of the aforesaid right to occupation of the fiat.

Once section 31 is out of the way, we are left with section 29 wherein we do not find even a provision of prior consent for transfer of share or inrerest in such property. The H only restrictions uner section 29(2) are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the Society or to a person whose application for membership has been accepted by the Society. It is true that byelaw 71D says that a member to whom a tenement is allotted shall not assign or underlet, vacate or part with the possession of the tenement or any part thereof without the previous consent in

writing of the Managing Committee, but there is nothing to show A that contravention of this bye-law makes the assignment void under the Act unlike in the case of a transfer being void under section 4 7 ( 3) .

There is no impediment to ratification of the assignment by the Committee particularly in view of the legal position arising . out of the conjoint effect of section 29, rule 24 and bye-Jaw 9.

Sect10n 29 read with rule 24 shows that' there is no prohibition as such against trans- B fer of a share to a member or even to a non-member if he consents to be a member .and makes an application for membership by purchasing five shares as provided under bye-law 9. Reading the aforesaid provisions there is no reason to hink that 'there is any guestio? of refusal of membership of the Society to a non-member 1f he 1s qualified otherwise and makes an appropriate .application in which case the transfer of shares will be operative and thus the assignment c of the right to occupation will hold good.

Further it is significant

t that under section 146(a) of the Act, contravention of sub-section

(2) of section 47 is punishable under section 147 of the Act.

Contravention of any bye-law is, however, no offence.

We, therefore, unhesitatingly come to the conclusion that this species of property. namely the right to occupy a fiat of this type, assumes significant D importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce.

We have seen no fetter under any of the legal provisions against such a conclusion.

The attachment and the sale of the property in this case in execution of the decree are valid under the Jaw.

Multi-storeyed ownership fiats on cooperative basis in cities and E big towns have come to stay because of dire necessity and are in !he process of rapid expansion for manifold reasons.

Some of these are: ever growing needs of an urban community necessitating its accommodation in proximity to cities and towns, lack of availability of land in urban areas, rise in price elf building material, restrictions under various rent legislations, disincentive generated by tax laws and other F laws for embarking upon housing construction on individual basis, security of possession depending upon fulfilment of tlie conditions of membership of a society which are none too irksome. In absence of clearand unambiguous legal provisions to the contrary, it will not be in public interest nor in the interest of commerce to impose a b1111 on saleability of these fiats by a tortuous process of reasoning.

The prohibition, if intended by the legislature, must be in express terms.

We have failed to find one.

The phenomenon of ownership of fiats as contra-distinguished from personal houses has been in vogue in England as well as in the, European Continent.

Ownership rights over separate parts of a building are mentioned in Coke on Littleton and such "super-imposed free holds" have existed in England in various places for a long time

(see International and Comparative Law Quarterly Volume

VII, H January 1958, pages 36-37).

With regard to a fiat-owners's right to dispose of his rights, it is pointed out that "the fiat owner may, in the words of a leadincr French Commentator" "sell, donate, leave by will, Jet or hypothecateil

-{ his right.

The rights are regulated by statutes in the Continent. The

JO SC/75-19 ~~...; ~";""""-'"<:.~

A German Statute, for example, allows the flat owner's right to dispose of his property to be made subject to the consent of other flat owners, but such consent may be refused only "for a very important reason.;"

[Article 12( I), (2)] and the statute gives the aggrieved flat-owner easy access to the court if a violation of this provision is alleged (see ibid page 39). Thus the trend is towards recognition of these B rights.

Now that attachment and sale have been held to be valid, it will be for the auction-purchaser first to obtain membership of the society and the court before confirmation of the sale will insist upon his membership of the society which, it would not be unreasonable to assume, will be granted by the Society in the ordinary course unless C there are cogent and relevant reasons for not doing so.

The fact that at the time of auction-sale the purchaser was not a member of the Society would not in law affect the saleability or prior attachment of the property in execution of the valid decree.

The judgment-debtor has a valid decree against him.

Ordinarily he has to discharge his liability under the decree.

He can pay the decretal amount straigbtaway or suffer his property to be attached and sold in execution of the decree.

As an honest debtor the liability under the decree has to be discharged.

Here the Society is not objecting to the attachment and sale of the property, but the judgmentdebtor is.

We have seen there is no absolute prohibition against transfer of a right to occupation of the flat or even to transfer a share.

The auction-purchaser is presumed to know the limitations under wltich he has purchased the right to occupy the flat in court auction.

If ultimately the Society turns down his application for membership (which of course cannot be done except for valid reasons) it is upto him to take such course of action as available under the law.

Such a remote contingency, per se, will not make the particular right of the judgment-debtor in the flat non-attachable or non-saleable.

It is contended by Mr. Chatterjee that section 60, Civil Procedure Code, does not specify that this species of property is liable to attachment.

The argument, however, fails to take note of section 60 being not exhaustive as such.

It refers also to any other saleable property, movable or immovable, whether the same be held in the G name of the judgment-debtor or by another person on his behalf.

We have held that the right to occupation of a flat is property both attachable and saleable.

Specific non-inclusion of a particular species of property under section 60 is, therefore, not of any consequence if it is saleable otherwise.

In the result the judgment of the High Court is set aside and the judgment-debtor's chamber summons dated March 28, 1972, stands dismissed.

The appeal is allowed, but there will be no order as to costs except that the court-fees will be pay- H able by the appellant.

We record our appreciation of the assistance rendered by Mr .. Chatterjee as amicus curiae and also by Mr. Zaiwala, couru; el for the appeilant.

V.M.K.

Appeal allowed.

+ ..

• -

RAMESH HIMMATLAL SHAH

HARSUKH.JADHAVJI JOSHI

A. ALAGIRISWAMI

P. K. GOSWAMI, JJ.

Maharashtra Co-operative Societies Act

Sections 29

Section 60

section 60

Civil Procedure Code

section 31

section 60

Civil Procedure Code

section 29(2)

section 31

section 31

section 31

section 29(2)

section 47(3)

Section 29

Section 60

section 60

Cooperative Societies Act, 1960

section 60

Civil Procedure Code

section 60

Civil Procedure Code

Section 2

Section 22

section 22(1A)

section 24

Indian Contract Act

section 23

section 25

section 26

Section 28

section 29

Section 31

Presidency-towns Insolvency Act, 1909

Section 4

section 60 and 61

Section 165

section 167

Companies Act, 1956

Chapter III of the Rules

section 47(3)

section 29(2)

section 31

section 4

section 31

section 29

section 31

section 47(1)

section 31

section 31

section 31

section 29

section 29(2)

section 4

section 29

section 146(a)

section 47

section 147

Article 12( I)

section 60

Civil Procedure Code

section 60

section 60


ZIY AUDDIN BURHANUDDIN BUKHARI

BRIJMOHAN RAMDASS MEHRA & ORS.

April 25, 1975

[M. H. BEG, A. ALAQIRISWAMI AND N. L. UNTWALIA, JJ.]

Representation of the People Act-Section 123(2), (3) & 3 (A)-Corrupt practice-Appeal 011 the gro1111d of religon-Pn11noti1.1g_ feelings of hatr.ed c:nd en1nity between different classes-Aniend1nent of pet1t1on-form of afJ.1dt; v1t-

Vagueness of petition-Evidence Act-Cassettes evidence whether adm1ss1ble-

Ordr of costs in favour of the respondent.

The appellant a candidate of Muslim League defeated respondent No. 3 C Shauket Chagla, the Congress c.andidate in the Maharashtra State in Assembly Election.

Respondent No. 1, a voter filed an Election Petition, inter alia, alleging that the appellant appealed to the voters to refrain from voting for respondent N~. 2. on the ground of religion and that the appellant promoted feelings of enmity or hatred between different classes of the citizens of India On grounds of religion.

The appe11ant made the following appeai to the voters in his variuos election speeches :

(1) ~(uslim personal Jaw was a matter of religious faith fr Muslims and that it extended to the mode of disposing of bodies of the dead.

The voters were told that if they voted for Chagla they would have to cremate the bodies of their dead instead of burying them because Chagla had cremated the dead body of his sister.

(2) The appe1lant entreated hi3 audience not to vote for those who stood

.against" their religion.

(3) Chagla was not true to his religion and that the appellant was a

true Muslim.

l4) If Muslim personal law may be considered a personal matter by Chagla it was considered to be "the law of God" by Muslims who F Would not tolerate any attempts to amend it as that would raise a religious question.

~5.) If the Congress Government brought any amendments iil Muslim

religious law the battle v, rould be fought in every street.

(6) Chagla advocated inter-communal or inter-caste marriages and that he wanted a Hindu to be a member of th~ Haj Committee.

(7) There were references to riots -in which only Muslims were alleged to have been killed.

(8) The appella:nt claimed that he would die far I dam and further said that "God has blessed us that every drop of our blood would give birth to thousands of Bukharis."

(9) "At the moment we are in such a war in which our opponent is such

a person who is playing with our religious affairs. He considers us to H be a community whose conscience is dead."

(10) "We have not signed any deed of slavery for the Government. \Vhen we find that the Goven1ment i! working against us, our lights are being crushed, our religious affairs are being interfered with, then we will rise openly against it. We would rise like a wan cemented with lead. Then who would bang with this wall, would get his hand broken. No harm would be done to us."

(11) Chagla's wife Nalini was a Hindu and his son was named Ashok.

Chagla used to attend the mosque as well as the temple and he should be excluded from Muslim localities.

(12) Chagla \Vas neither a good Hindu nor a true Muslitn sd that neithzr

God nor Bhag\van \Vas pleased with him.

The High Court allowed the petition and set aside the election of the appellant. The High Court awarded costs of Rs. 12,000 to the first respondent and costs of Rs. 3,000 to the second respondent.

In the present statutory appeal the appellant contended :

( 1) The affidavit filed by the election petitioner was not in proper form since it does not give the sources of infoITIIation of the corrupt practices.

(2) The High Court erred in not framing issue on the vagueness of the petition.

(3) The High Court erroneously allowed the amendment of the Election,

petition.

(4) The High Court ought not to have relied on the cassettes of tape

records.

D ( 5) The appellant merely asked the voters to suport one who opposed

any change in muslim personal law as against another who Wanted to change it. If change of personal law is a secular matter oj:ipositi_on to its change could not become an appeal on grounds of religion.

(6) The order of costs passed by the High Court \Vas very excessive.

(7) The appellant did not get a fair trial.

HELD : Our Constituticin-makers intended to set up a Secular Democratic Republic.

Our political history made it particularly necessary that the basis of religion, race, caste, community, culture, creed and language \Vhich can generate powe1iul emotions depriving people of their powers of rational thought and action should not be permitted to be exploited lest the imperative conditions for preservation of democratic freedoms are disturbed. Section 123 (2), (3 J and (3A) were enacted to eliminate from the electoral Process appeals to those decisive factors \\,:hich firousc irrational p;:tssions that run counter to the basic tenets of our Constitution. Dile respect for the religious belief and practices, race, creed, cultur~ and language of other citizens is one of the basic postulates of our democratic system. The line has to be drawn by the court between what is permissible and \vhat is prohibited after taking into account the facts and circumstances of each case interpreted in the context in \Vhich the stare ments or acts' complained of were1made. The court has to determine the effect of sta.tements made by the candidate upon the n1inds and feelings of the ordinary average voters of this country.

[28'8A-F]

The High Court was right in holding that tape records of the speeches were documents and were admissible in evidence, provided the voice of the speaker was identified, accuracy of the actual recording ascertained-and the

relevancy of the subject matter established.

[290A-B] The High Court rightly considered the tape records to be reliable for the f0llcwing three reasons: firstly, the tape records have been prepared by an independent authority, the police ; secondly, transcripts from the tape records \Vere duly prepared very soon after the tape records were made which made the subsequent tampering easy to detect ; ana thirdly, the police had made !he tape records as part of its routine duties and not for the purpose of laying any trap to procure-evidence. [290G-H, 291A}

Tue High Court rightly treated the shorthand notes and. shortand transcripts made by those \vho heard the speeches as corroborative evidence and \Vhich could be used by the witness to refresh his memory. [291F]

The High Court rightly held that the various speeches made by the appellant ¥iolated the provisions of section 123(2), (3) and (3A). We do not consider .such speeches have any place in a democratic set up in our Constitution. Our democracy can only survive if those who aspire to become people's representa- ; tives and leaders understand the ipirit of secular democracy.

Ifsuch propaganda was permitted it would injure the interests of the members of the religious minority groups m, ore than those of others. [293 BF, 294 E, G, 295 E, H,

296 BJ .

The objection that the affidavit \Vas not in proper form is wholly untenable.

The aJleged defect is one of lack of particulars which v; ras given up by the .oppellant in the High Court.

(2$6 A & CJ

There js no substance in the objection that the High Court did not frame an i6Sue on the qutstion of vagueness of the petition. The real objection is that the particulars of the speeches made by the appellant were given in great -Oetail in the statements annexed to the petition with the necessary affidavit. The C law does not require the whole evidence to be set out in the petition in the form of particulars. (286 CDEJ

The trial c0t1rt by allowing the amendment merely removed the vagueness from the petition by confining the allegation of corn1pt practice against the .appellant himself.

[286 G-H]

Various allegations have bee~ made of unfairness against the trial Judge.

There is no substance in those allegations. The nat:ure of these allegations dis-

.closes an unreasonable attitude of the appellant's counse~ which was also exhibited during the course of the trial. [287-F] '

The order of costs appears tc err on the side of severity.

The order of costs in favour of respondent No. 2 was set aside since the petition \Vas filed ''by respondent No. 1. The costs awarded in favour of respondent No. 1 was

redoced from Rs. 12,000 to Rs. 6,000.

(298 E, FG]

CIVIL A.PPELLATE JumsmcnoN : Civil Appeal No. 134 of 1973.

From the Judgment and order dated the 27th/28th November, 1972 of the Bombay High Court in Election Petition No. 4 of 1972.

K. K. Singhvi, R. K. Garg, V . .T. Francis and S. C. Agarwala, for the appellant.

M. C. Bhandare, P. H. Parekh, and S. Bhandare, for respondent No. 1.

The Judgll)ent of the Court was delivered by G

BEG, J.-This appeal under section 116A of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') is directed against the Judgment and order of the High Court of Bombay setting aside-the election of the appellant to the Maharashtra State Assembly from Kumbharwada constituency held on 9-8-1972 on a voter's election petition H

The voter alleged that the appellant, in the course of his election, had committed corrupt practices defined in Section 123, sub. s. (2) and (3) and (3A) of the Act. The gist of the charges against the appellant Ziyauddin Burhanuddin Bukhari (hereinafter referred to as 'Bukhari'), a Muslim League candidate, was, that, he had made

A speeches in the course of his election campaign calculated to induce a

belief in the voters that they will be objects of divine displeasure or spiritual censure if they voted for Shaukat Currimbhoy Chagla (hereinafter referred to as 'Chagla'), a Congress Party candidate, who was impleaded as the 2nd respondent that, in the above mentioned speeches, the appellant had called upon the electors to vote for him and not for B Chagla on the ground that he alone stood for all that was Mnslim whereas Chagla represented all that was against Muslim religion and belief so that Chagla could not be a true Muslim at all, the object of such appeals being to further the chances of election of Bukhari and to prejudiciaUy effect the prospects of the election of Chagla; that, the -appellant, Bukhari, had attempted to promote feelings of enmity and hatred between Muslims and Hindus on grounds of religion and come munity. Particulars of the speeches delivered at sixteen meetings and what was said there by Bukhari were furnished with the election petition.

The alleged corrupt practices arc defined in the following provisions. of Section 123 :

"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the ca, ndidate or his agent, or of any other person with the consent of the ca:1didatc or his election ai::ent, with the free exercise of any electoral right : Provided that--

(a) without prejudice to the generality of the prov1s10ns of this clause any such person as is referred to therein who-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will became or will be rendered an object of divine displeasure or spiritual censure, shaU be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to,. national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that

z. B. BUKHARI v. BR!JMOHAN (Beg, J.) 285

candidate or for prejudicially affecting the election of A any candidate.

(3A) The promotion of, or attempt to promote feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate."

Before considering whether the allegations made in the petition are substantiated, and, if so, whether allJI corrupt practice, as defined above C was committed, beyond reasonable doubt, by the appellant. we will deal with certain technical objections placell before us at the outset by learned Counsel for the appellant.

It is urged that 11llegations of corrupt practices, falling under Section 123(3) and 123(3A), are not supported by the affidavit required D by the proviso to Section 83(1) of the Act. Section 83 of the Act enacts :

"83. Contents of petition-(!) An election petition-

( a) shall . contain a concise statement of the material facts on which the petitioner relies; E

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompained by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. '

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same mamier as the petition".

It was submitted that Section 80 of the Act amounts to a prohibition against calling in question any election, "except by an election petition

preseted in acordan7e with the provisions of this part" (i. e. Chapter JI which contams Sec!ion 83). Apart from the fact that the High Court dealing with this question had, in our opinion, rightly recorded the finding that the issue No. 2. framed on this objection was specifically grven up in its entirt'ty by the learned Counsel for the a'ppeallant, so that he could not wriggle out of it by a vagne reservation of s01µe right to

A urge that the affidavit filed was not in proper form, we were not shown any defect of form at all in the affidavit filed.

All that was urged is that the relevant affidavit does not give the sources of information so far as corrupt practices. under section 123(3) and 123(3A) are concerned. As was pointed out by this Court in Hardwari Lal v.

Kanwal Singh('), this is not a defect of the required form but may,

B in suitable cases, form the subject matter of an objection based on Section 86 and Section 123 (7) of the Act relating to supply of materi; il particulars. It was indicated by this Court in Prabhu Narayan v. A. K.

Srivastava( 2 ), that a petition can only be dismissed for a substantial defect.

In the case before us, as there is no defect at all in the form of C the affidavit, and the alleged defecL_ of want of particulars, set up in paragraph 2 of the written statement on which issue No. 2 was framed, must be deemed to have been given up on behalf of the appellant, we cannot now entertain in this Court an objection, based on alleged want of particulars, particularly as nothing material seems to have been wanting.

We also think there is no substance in the appellant's obiection that the Trial Court had not framed an issue D on an alleged vagueness of the petition which is another way of saying that it was wanting in particulars.

The particulars of the speeches made by the appellant were given .in great detail in Lhe statements annexed to the petition with the necessary affidavit. We can presume that, if such an objection on the ground of insufficient particulars is actually given up by a party so thl!ct an issue actually framed E on it is not tried, the party could have suffered no disadvantage from alleged want of further details which are reaJly matters of evidence.

The law does not require the whole evidence to be set out with the petition in !he form of particulars.

Still another objection was that the Trial Court had eroneously allowed an amendment of the election petition by an order dated F 29-9-1972. Reliance was placed upon this Court's decision in Manubhai Nandlal Anersey v.

Popat/al Maini/al Joshi & Ors.(") and Samant N. Balakrishna etc. v. Geo1ge Fernandez & Ors. etc. ( 4 ), to contend that the amendment 11sked for should not have been allowed. We have examined the application for amendments of the petition sought by the petitioner and allowed by the Court. We think that the amendments really removed vagueness from the petition by G confining th~ allegations of corrupt practice to what of corrupt practice to what the appellant Bukhari himself had said in his speeches. AHributions of those very statements to his agents, in the alternative, whic:h introduced some ambiguity, were deleted. Another amendment sought was the insertion of names of persons said to have made certain other speeches. The High Court had allowed the amendments on the ground that they did not amount to any allegation H of a fresh corrupt practice. The question whether the speeches of certain persons other than the appellant were rightly permitted to become the subject matter of c:onsideration by the amenflment has lost all

(') [1972] (2) SCR 742. (') C.A. No. 1174of1973-1eliverd "' 14-2-75.

(') [1969] (3) SCR 217.

(') [1969] (3) SCR 603.

\.·

' y

importance as the appellant has been held guilty of corrupt practices solely for speeches made by himself and we propose to deal with those only.

We, therefore, find no force in the objections to the order allowing amendment of the election petition, which only clarified the petitioner's case.

Learned Counsel for the appellant invited out attention especially to ground 'H' of the grounds of appeal. This is the most prolix of all the grounds of appeal the number of which not only exhausts the whole alphabet 'A' to 'Z' but ground numbered 'Z' is divided into subgrounds 'Zl' to 'Z.15', and each of these sub-grounds is further split up into a number of minor grounds. Ground 'H' itself is split up into 22 parts which cover 5 printed pages of our paper book. Ground 'H' thus consists of a long statement of the pellant's grievances about mutifarious mfrlters cov, ering the whole course of trial of the case, such as a permission given by the Court to recall a police Sub- Inspector for further examination, permission accorded by the Court to the respondent's Counsel for getting transcripts of the appellant's tape recorded speeches made under the supervision of a Court officer, permission granted to the Solicitors of Chagla to obtain copies of documents filed, the observations recorded by the learned Judge about the demeanour of witnesses and other similar matters. No illegality whatsoever is even alleged in most of these purported grounds of objection. If these grounds indicate a carpingly unreasonable attitude of the appellant's Counsel during the course of the trial in the High Court or attempts to make mountains out of molehills, they may afford some light on why the rather unusual order of heavy costs was passed by the learned Judge with which we shall deal separately at the end of this Judgment we are, however, linable to find, from material on record, that the conduct of the trial by the learned trial Judge was unfair in any respect. Moreover, we think that the only really material question before the Court for decision, on which we have ourselves re-examined the whole evidence on record, were : Did the appellant's speeches contain what was said to be tape-recorded and also sought to be proved by oral evidence supported by the notes of those who are alleged to have heard these speeches themselves ? If this was so, was their. effect upon the ordinary average voters of this country such as to come within the mischief provided for by any of the three heads of provisions of Sec. 123 of the Act set out above ?

These are questions capable of determination objectively irrespective Of the snbjective inclinations or opinions of the Judge deciding such issues although we cannot, and should not even try to, escape the consequences, upon any case before us, of our conclusions about the purposes and meanings of the relevant provisions of Section 123 of the Act, set out above, reached by applying relevant rules of interpretation of such provisions. _

w~ propose to indicate, at this stage, what mischief the provisions were designed to suprss because that seems to i:s to be the most illuminating and certam way of correctly construmg these statutory

A prov!510ns. We cannot do so without adverting to the historical, political, and Constitutional background of our democratic set up, such provisions are necessary in our opinion, to sustain the spirit or climate in which the electoral machinery of this set up could work.

Our Constitution-makers certainly intended to set up a Secular Democratic Republic the binding spirit of which is summed up by the B objectives set forth in the preamble to the Constitution. No democratic political and social order, in which the conditions of freedom and their progressive expansion for all make some regulation of all activities imperative, could endure without an agreement on the basic essentials which could unite and hold citizens together despite all the df!crenccs of religion, race, caste, community, culture, creed and c language. Our political history made it particularly necessary that these differences, which can generate powerful emotions, depriving people of their powers of rational thought and action, should not be permitted to be exploited lest the imperative conditions for the preservation of democratic freedoms are disturbed.

It seems to us that Section 123, sub s. (2), (3) and (3A) were en- D acted so as to eliminate, from the clectroral process, appeals to those divisive factors which arouse irrational passions that run counter to the basic tenets of our Constitution, and, indeed, of any civilised political and social order. Due respect for the religious beliefs and practices, race, creed, culture and language of other citizens is one of the b"°sic postulates of our democratic system. Under E the guise of protecting your own religion, culture or creed you cannot embark on personal attacks on those of others or whip up low hard instincts and animosities or irrational fears between groups to secure electoral victories. The line. has to be drawn by the Courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of each case interpreted in the context in F which the statements or acts complained of were made.

Section 123 (2) gives the "undue influence" which could be exercised by a candidate or his agent during an election a much wider connotation than this expression has under the Indian Contract Act. "Undue influence", a" an election offence under the English law is explained as follows in Halsbury's Laws of England, Third Edition, Vol. 14, p. 223-224 (para 387):L-

"A person is guilty of undue influence, if he, directly or indirectly. by himself or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or inflicts, or threatens to inflict, by himself or by any other person, any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that that person to vote or refrain from voting or on account of that person having voted or refrained from voting.

A person is also guilty of undue influence if, by abduction, duress or any fraudulent device or contrivance, he impedes or prevents the free exercise of the franchise of an elector or proxy for an elector, or thereby compels, induces

or prevails upon an elector or proxy for an elector either to vote or to refrain from voting". - A

It will be seen that the English law on the subject has the same object as the relevant provisions of Section 123 of our Act. :But, the provisions Section 123 (2), (3) and (3A) seems widerin scope and also contain specific mention of what may be construed as "undue influence" B viewed in the background of our political history and the special conditions which have prevailed in this country.

We have to determine the effect of stateD1ents proved to have been made by a candidate, or, on his behalf and with his consent, duri11g his election, upon the minds and feelings of the ordinary average voters of this country in every case of alleged corrupt practice of undue influence by making statements. We will therefore, proceed to consider the particular facts of the case before us.

We have already mentioned above that the offending statements were alleged to have been made by the appellant at sixteen election meetings addressed at various places between 12-2-1972 and 6-3-1973.

Out of these, the petitioner's counsel had given up, in the Trial Court, reliance on speeches a, t four meetings some of which were held at places outside the appellant's constituency. The High Court held that the contents of speeches alleged to have been made on 1-3-1972 at Erskine Road and on 3-3-1972 at Ismail Curtay Road and on 4-3-1972 at Nizam Street by the appellant were not duly proved. The High Court did not find that the statements made by the appellant in the course of the speeches on 12-2-1972 at Kachi Memon J amat Khana and on 23-2-1972 and 28-2-1972 at Chima Butcher Street had transgressed the limits of propriety set by Section 123(2) and (3) and (3A) of the Act. But, it found that the appellant had violated the provisions of either Section 123(2) or 123(3) or 1'23(3A) of the Act by statements made in the course of the remaining six speeches proved to have been made by the appellant.

The evidence relating to the appellant's speeches, discussed fully by the High Court, consisted of : .

1. Cassettes or tape records of the appellant's speeches.

2. Transcripts of tape recorded speeches prepared shortly after tape-recording them.

3. Full shorthand records of speeches of the appellant by those who heard them at meetings.

4. Notes and records containing summaries of t11c appellant's speeches made by persons attending meetings.

, 5. Statements of witnesses present at the meetings who had actually H heard what was said by the appellant.

There could be and was no objection raised to the admissibility of the last mentioned type of evidence. But questions re1a.ting t() the admissibility 'of the first four types of evidence, mentioned above, were taken and may be conveniently dealt with here.

290 SUPRJl.ME COURT REPORTS [1975] SUPP s.c.R.

We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions :

(a) The voice of the person alleged to be speaking must be duly identified by thi~ maker of the record or by others who knew it.

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circum stantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.

These requirements were deduced by the High Court from R. V.

Maqsud Ali ( 1 )

The High Court had also relied on Yusufalli Esmail Nagree v.

D State of Maharashtra( 2 ), to hold that a contemporaneous tape record of a relevant conversation or speech would be part res gestae.

In this case, Court, while laying down requirements of admissibility of tape records as evidenct, also pointed out that the case with which the recording on a tape could be erased by subseque!"t recording, so that insertion could be superimposed, made it E necessary to receive such evidence with caution, and it said that the Court should be satisfied, beyond reasonable doubt, that the record had not been tampered with

The High Court also referred to N. Sri Rama Reddy and Ors. v.

V. V. Giri,(') for , the proposition that, like any document, the tape record itself was "primary and direct evidence admissible of what 'F has been said and picked np by the receiver". In other words, its use was not confined to purposes of corroboration and contradiction only, but, when duly proved by satisfactory evidence of what was fcnmd recorded and of absence of tampering, it could, subject to the provisions of the Evidence Act, be used as substantiative evidence. Thus, when it was di1puted or in . issue whether a person's speech, on a particular occasion, contained a particular statement there could hr G no more direct or better evidence of it thao ;; s tape record, assuming its authenticity to be duly established.

In our opinion the High Court had rigl., tly relied upon the tape recorded reproductions of the appellant's speee!ies. It had iven three grounds for considering the tape records to be reliable and ai; thentic: firstly, the tape records had been prepared and preserved safely by H an independent authority, the police, and not by a party to the case: second, the transcripts from the tape records, shown to have been duly prepared under independent supervision and control, very soon afterwards, made subsequent tempering with the cassettes easy to

(') [19651 (2) AILE.R.464. ('l 1968 (Vol.70) Bombay Law Reporter 76@';78.

(' !19711 (I) SCR 399.

detect; and, thirdly, the police had made the tape records as parts of its routine duties in relation to election speeches and not for the purpose of laying any trap to procure evidence.

We may add a fourth reason. This is that, after, going through the deposition of Bukhari in Court, we find that, although he was identified by police officers as the person who was speaking when the relevant tape records were made, he did not, at any stage, dispute that the tape r.ecorded voice was his. He only denied having made some of the statements found recorded after the tape records had been played in Court in his presence. In fact, he admitted that he knew. that "the cassettes wern recorded by police officers who gave evidence" in Court. If the indirect implication of bis dubious statement, in denying some of the statements found in the speeches without denying that the voice making these statements was bis, could be that some portions had been interpolated, the police officers should have been cross-examined about it. Nevertheless, the appell.a.nt admitted, under crosscexamination, that he had given no instructions to his Counsel to cross-examine these officers on this matter.

No suggestion was put to the police officers concerned indicating that there had been any interpolation in the records the making of which was proved beyond all reasonable doubt by evidence which had not been shaken.

As regards the shorthand transcripts of the tape records, the evidence of their makers is there, it is certainly corroborative inasmuch as it only goes to confirm what the tape records contained. The tape records were the primary evidence of what was recorded. The transcripts could be used to show what the transcriber had found recorded there at the time Of the transcription. This operated as a check against tampering. They had been rightly used by the High Court only as corroborative evidence.

As regards the shorthand notes and full short-hand transcripts f: made by those who heard the speeches, the High Court had treated these also as corroborative evidence which could be used by a witness to refresh his memory as laid down in Section 159 of the Evidence Act. It held that their contents could be brought on record by direct oral evidence in -the manner prescribed by Section 160 of the Evidence Act, a course the propriety of which has the support of decisions in G. this Court in Laxminarayan and Anr v. The Returning Officer and

Ors.('), and in Kanti Prasad Jayshankar Yagnik v. Purshottamdas Ranchhoddas Patel and Ors.,( 2). We find no errors in the views adopted y the High Court on these questions.

It was suggested that the tape recording, the making of transcripts, the making of shorthand notes by the police had taken place at the instance of a Journalist, Yunus Rehrrian Ansari, who appeat'(ld H: as a witness for the petitioner in the case. He had frankly stated in his evidence in Court :

"During the elections I second respondent.

(1)[19141 3 s.c.c. 425

(2) [1969] 3 SCR 400.

was looking after the interest of the

I did feel disappointed. when the.

second respondent lost the election. Every worker of the candidate feels disappointed if the candidate loses".

After having been taken through the evidence, in the light of the submissions made by the learned Counsel for the appellan!, we are unable to hold that there must have been a conspiracy between the B Police Officers and Yunus Rehman Ansari to procure evidence for declaring the election of Bukhari void. Ansari, although not a disinterested witness, had stood the test of cross-examinatiQ!l well and could not be disbelieved merely because he was a worker of Chagla.

His evidence is corroborated by the duly proved contents of tape recorded speeches, and, indeed, by some of the admissions of Bukhari C himself showing, inter-alia, that he considered any one who advocated reform of Muslim personal law to be a person unfit to get the support of "any Muslim". He said :

"It is true tha, t Muslim personal law is apart of our religion (Wit. gives this answer after first attempting to evade giving a direct answer). It would follow that whoever attempted to change the Muslim personal law would be attempting to affect the Muslim religion. It is true that whcever attempted to do so would not be entitled to the support of a true Muslim or of any Muslim. I conveyed this repeatedly in my speeches to my electorate".

We will now take up the contents of each of the six offending speeches, which, for the reasons indicated above, were rightly held to have been proved beyond reasonable doubt to have been made by the appellant.

The first of the speeches found to be objectionable was delivered F by the appellant on 27-2-1972, at Masjid Street, within his own constituency. It is true that the contents of this speech are proved only by the evidence of Ansari corroborated by the notes prepared by Ansari himself. But, as these correspond with contents of other speeches examined by us, there seems no reason to disbefreve Ansari when he says that the appellant told the audience that Muslim personal law was a matter of religious faith for Muslims and that it extended to the G mode of disposing off bodies of the dead. The appellant went on to tell the listeners that, if they voted for Cbagla, they would have to cremate the bodies of their dead instead of burying them because Chagla had cremated the dead body of bis sister. The appellant also attacked Chagla's religion by stating that everyone bad to observe his religion whole-heartedly and not like one who was (to put it in the equivalent English idiom) "neither fish nor fowl". The appellant en- H treated bis audience not to vote for those who stood against their religion. The clear implication of his words was that Cbagla was not true to his religion whereas the appellant was, and, therefore, the voters should prefer Bukhari. His absolutely unambiguous object was to persuade the audience not to vote for Chagla but w vote tor Bukhan on the ground that Bukhari was a true Muslim whereas Chagla was not.

The High , Court had referred to Kultar Singh v. Mukhtiar A Singh('), and said that a candidate appealing to voters in -the name <Jf his religion could be guilty of a corrupt practice struck by Section 123 ( 3) of the Act if be accused a rival candidate, though of the Mme religious denomination, to be a renegade or a heretic. The appellant had made a direct attack of a personal cl1aracter upon the competence of Chagla to represent Muslims because Chagla was not, B according to Bukhari, a Muslim of the kind who could represent Muslims. Nothing could be a clearer denunciation of a rival on the :ground of religion. In our opinion, the High Court had rightly hdd

such accusations to be contraventions of Section 123(3) of the Act.

The second speech found to contain objectionable matter was proved to have been delivered by the appellant on 29-2-1972 at Hussainibagh, a place said to be so situated that, though it lies outside the Kumbharwada constituency, a meeting there would be attended largely by persons residing within Kumbharwada constituency.

Its contents were proved by a police Stenographer, Sheikh, who had made a fu!J. short-hand record of it which was translat;, d. In this speech, the appellant was shown to have stated that, although Muslim personal law niay be considered a personal matter by Chagla, it was considered to be "the law, of God" by Muslims who would not tolerate any attempts to amend it as that would raise a religious question. In the course of this speech, the appellant is reported to have said that, if the Congress . Government brought i1t "amendments in our religious law", the "battle would be fought in every street" as "the question of religion has arisen''. The appellant bad threatened the ruling Congress party with open rebellion if attempts were made to change Muslim personal law which he called "a question of religion''. The ; ippellant had also made statements implying that Chagla was a supporrer of thi~ policy of change in what Bukhari called "a matter of religion" for Muslims. The Hgh Court had held that these statements amounted -to a violation of Section 123 ( 3A) of the Act, on the -ground that Bukhari's language was calculated to promote hostility between Hindus and Muslims. It opined that, in the appellant's mind, fae Congress stood for the Hindu majority. We think that the language employed, viewed in the context of its purposes, could also fall within •the purview of Section 123 ( 3) of the Act inasmuch as Chagla was represented as a candidate advocating what was contrary to Bukhari's view of Muslim religion. Indeed, the words used by Bukhari could be said to have even graver implications. However, we think , that it was sufficiently unrestrained and irresponsible so as to promote feelings of hostility between different classes of citizens of India on ground of religion and also directed personally against Chagla, an alleged supporter of an. assumed attack on Bukhari's relion. We do not find sufficient reason to dilfur from the view adopted by the High Court that these statements amounted to electoral offences struck by Section 123(31\.) of the Act. ·

' The third speech containing objectionable matter was proved to have been delivered by the appellant on 2-3-1972 at Saifi Jubilee

(I) [!964] 7 S.C.R. 790.

A Street within his own constituency. Its contents are proved by a full transcript made by Police Stenographer Sheikh, of which an English translation was before the Court, and by the oral evidence of Ansari corroborated by Ansari's notes. It contained allegatins against Chagla's faithfulness to Muslim religion on the ground that he had advocated inter, communal or inter-caste marriages and that he wanted n a Hindu to be a member of the Hai CommiHee.

After the usual fulminations against Chagla, the appellant flung a question addressed to Chagla. It was translated : "With what cheek you say that you are a representative of ours"? In addit, ion, there were references to riots in which only Muslims were alleged to have been killed. There was also the usual statement that Muslim personal law was a matter of C religion to Muslims. Bukhari then declared that if this law was sought to be changed, Muslim league candidates "would become such a wall for them against which they will break their heads". Bukhari Claimed th!tt he could die for Islam. He then said: "God has blessed us that every drop of our blood would give birth to thousands of Bukharis".

It appears to us that the High Court was right in construing the D speech as highly inflammatory. It certainly amounted to the assertion that Muslim religion (or, what Bukhari thought it was) was in danger and could only be saved by man like Bukhari and not by Chagla.

We. think that it is, a fair construotion on the speech to holp that it amounted to at least a violation of Section 123(3) of the Act.

think that it was also struck by Section 123(3A) of the Act.

The fourth speech of the appellant, said to contain offending matter, was shown to have been delivered on 6-3-1972 at Bara Imam Road within the appellant's constituency. It was tape recorded by Sub Inspector N. A Khan. In it, after the usual accusations, Chagla is attacked in the following words :

"At the moment we are in such a war in which our opponent is such a person who is playing with our religious affairs.

He considers us to be a community whose conscience is dead".

The High Court rightly held it to be a violation of Section 123 O} of the Act.

Another part of' the speech which the High Court is held to be violative of Section 123 (3A) of the Act runs as follows :

"We have not signed any deed of slavery for the Government.

When we feel that this Government is working against us, our rights are being crushed, our religious affairs. arebeing interfered with, then we will rise openly against it.

We would rise like a wall cemented with lead. Then who would bang with this wall, would get his head broken.

No harm would be done to us".

It could be argued that, even if it did not directly contravene the letter of Section 12:i(3A) of the Act, it was an incitement to violence ..

We, however, do not think ; t necessary to go further into this ques- A

~ + tion here. We are not prepared to disagree with the opinion of the High Court about this speech. The High Court had rightly concluded that, in the appellant's mind, the Congress Govt. constituted "Hindu Raj". ' The fifth objectionable speech -0! the appellant was shown to have been made on 6-3-1972 at Saifi Jubilee Street within the Kumbhar- B

wada constituency. This speech was beard by Sub-Inspector Kulkarni • who had made notes conta, ining the gist of all the speeches delivered at the meeting. Nothing was brought out to cast any doubt on the vcracity of Sul>-Inspector Kulkarni, who appeared as a witness and gave

> .I out the contents of the appellant's speech. In the speech, the appelc • lant bad attacked Chagla and bis family on the ground that Chagla had advocated the inclusion of Bindus in the Raj Committee. Bukh; i.ri alleged that Chagla's wife, a Hindu lady called Nalini; his son Ashok,

~ as well as Chagla used to attend the mosque as well as the temple.

Bukhari went .so far as to state that Chagla should be excluded from Mu.slim localities .. Bukhari alleged that Chagla and his family pleased D neither Allah nor Bbagwan. In other words, Bukhari, apart from mak ing a direct attack on the alleged religious beliefs and practices of the Chagla family, clearly conveyed to the bearers that C.hagla was an unfit person, on the ground of his mixed religious faith and practices, to represent Muslims. Bukhari had also called upon Muslims to unite against such a person if they wanted their religion. to survive.

The High Court had very rightly held that these statements contravencd the provisions of Section 123(3) of the Act.

The sixth and the last spch containing offensive matter was shown to have been made on 6-3-1972 at Chowki Mahalia Undcria Street which, although outside the Kumbhatwada constituency, was so situated as to attract the voters from the Kumbharwada constituency F '

~ hardly 600 ft. away. The speech was tape recorded by Sub-Inspector N. A. Khan.

In this speech, the appellant again attacked Chagla and repeated what, according to him, he had also stated at another meeting, that is to say, that Cbagla was neither a good Hindu nor a true Muslim

y so that neither God nor_ Bhagwan was pleased with him.

He compared Chagla to a Dhabi's dog who neither belonged to the Dhabi nor to the Ghat.

The appellant, while thus attacking the alleged personal G • beliefs and practises of_ Chagla, obviously in an attempt to induce the voters to re(raiu from voting for Chagla, prayed to God for success so that no one may be able to attack the religion of Bukhari.

• The whole outlook revealed by the speeches of Bukhari is that of a medeival crusuder who had cml:\a.rked on a Jehad for extirpation of the • heresy or "kufr" which, in Bukhari's imagination, was represented by H Chagla and bis party. We do not consider such speeches to have.any place in a democratic set up under onr Constitution. Indeed, they have none in the world of modern science which has compelled every type of religion, for.its own survival, to seek securer foundations than childlike faith in and unquestioning conformity of obediency to an invat. -/

riaqle set of religious beliefs and practises.

10 SC/75-20.

..,.._,_ ---- -

A We do not think that any useful purpose is served by citing authorities, as the learned Counsel for the appellant tried to do, to interpret the facts of the case before us by comparing them to the very different facts of other cases.

In all such cases, the line has no doubt to be drawn with care so as not to equate possible impersonal attacks on religious bigotry and intolerance with personal ones actuated by bi- 'B gotry and intolerance.

As already indicated by us, our democracy can only survive if those, who aspire to become , people's representatives and leaders understand the spirit of secular democracy. That spirit was characterised by Montesquieu long ago as one of "virtue". It implies, as the late C Pandit Jawaharlal Nehru once said, "self discipline". For such a spirit to prevail, candidates at elections have to try to pursuade electors by showing them the light of rea, son and not by inflaming their blind and disruptive passions. Heresy bunting propaganda on professedly religious grounds directed against a candidate at an election may be permitted in a theocratic state but not in a secular republic like ours.

It is evident that, if such propaganda was pcrmited here, it would in- ' i> jtire the interests of members of religious minority groups more than those of others. It is forbidden in this country in order to preserve the spirit of equality, fra!ernity, and amity between rivals even during elections. Indeed, such prohibitions are necessary in the interests of elementary public peace and order.

Learned Counsel for the appellant submitted !hat if we considered the substance of what was said by the appellant it would only amount to a plea that the voters should support one who opposes any change in Muslim personal law as against another who wanted to change it.

If change of personal law is, it is suggested, only a secular matter, opposition to its change could not become an appeal on grounds of religion. To accept this argument would be to view the appeal to the voters after turning it upside down, or, perhaps, inside out. We are not concerned so much with the real nature of what is opposed or supported as with the grounds on which a candidate claims support over a rival We have to primarily examine the cloak which the appeal wears to parade in and not only what lies !Yeneath it.

G If all human activity in this world could be labelled "secular", on the ground that' it appertains to "this world" as against "the other world", all religious thought and activity could be described as "secular", as it takes place in this world, But, •the term it not used so broadly. It is a convenient label to distinguish all that is done in this world without seeking the intervention or favour of or propitiating a Superhuman or Divine Power or Being from that which is done professedly H to please or to carry out the will of the Divinity. Secularism, in the realm of Philosophy, is a system of Utilitarian ethics, seeking to maximize hmnan happiness or welfare quite independently of what may be either religious or the occult.

. Primitive man does practically nothing without making it wear a religious garb because his understanding of the physical world, of

T- -(

•.·

.. '

' -

f -I

Z. B. BUKHARI V.<BRIJMOHAN'{Beg, J.)

human nature, and of social needs and realities, is limited. He SU!" rounds customary modes of action with an. aura of superstitious re verence. He is fearful of departures from these lest he is visited b) Divirtc wrath. Modern man, with his greater range of scientific knowledge and. -bter understanding of his own needs as well as of the nature of the Universe; attempts to confine religion to its proper sphete----"that where he reaches a satisfying relationship between himself and the Divinity he believes in s,0 as to get an inner strength and solace-' which enable him to overcome psychologiql crises or fears when confronted with disturbing or disrupting events, such as a Death, or their prospects. He does not permit his religion, which should be essentially his fodividual affair, to invade what are properly the spheres of law, politics, ethics, aesthetics, economics and technology, even where its administration is institutionalised and it operates as a soc.ial force. ·

The Secular State, rising above all differences of religion, at\empts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits

to citizens of all castes and creeds. Maitland. had pointed out that D such a state bas to cnsur_e, through its laws, that the existence or exercise _of a political or civil right or the right or capacity to occupy any dffiee or position under it or to perform any public duty connected with_ it does not depend upon the 'profession or practise of any particul_ar religion. Therefore, candidates at an election to a legislature, which is a part of "the State", cannot be allowed to tell electors that their rival• arc unfit to act as their representatives on grounds of their E religious professions or practices. To permit snch propaganda would be not merely to permit undignified personal attacks on candidates concerned but also to allow assaults on what sustains the basic structure of our Democratic State.

Our Constitution and ihc Jaws framed thereunder leave citizens F free to work out happy and harmonious relationships between their religions and the quite separable secular fields of law and politics.

B, ut, they do not permit an unjustifiable invasion of what belongs to one sphere by what appertains really to another. It is for Courts to determine, in a case of dispute, whether any sphere was or was not properly Interfered with, in accordance with the Constitution, even by a purported law. The validity of Section 123(2), (3) and (3A) G has not been questioned before us. And, we have explained above what these provisions are meant for.

To return to the precise question before us now, we may repeat that what is relevant in such a case is what is professed or put forward by a candidate as a ground for preferring him over another and not the motive or reality behind the profession or ostensible ground that H very secular or mundane. It is the professed or ostensible ground that matters. If that ground is religion, which is put on the same footing as race, caste, or language as an objectionable ground for seekincr votes, it is not permissible. On the other hand, if support is souglrt on a ground distinguishable from those falling in the prohibited caregories, it will not be struck by Section 123 of the Act whatever else

A it may or may not offend. It is then left to the electorate to decide whether a permissible view is right or wrong.

According lo his own professions, the appellant wanted votes for himself on the ground that he staunchly adhered to what he believed to be Muslim religion as contrasted with Chagla who did not. There is no doubt whatsoever in our minds that the High Court had rightly found the appellant guilty of the corrupt practices defined by the provisions of Section 123(2), 123(3) and 123(3A) of the Act by making the various speeches closely examined by us also.

Lastly, we have before qs the order for costs made by the High Court in the following terms :

"Having regard to the provisions of Section 99 of the Act and Rules 24 and 26 of the Rules framed by this Court under the Act, I order the first respondent to pay to the petitioner the sum of Rs. 12,000/- for costs. I also order the first respondent to pay to the second respondent the sum of Rs. 3,000/- for costs. There will be no order in regard to costs of the other respondents as they have not filed written statements or appeared at the hearing."

We think that, although Section 99 of the Act may permit th~ award of special costs in suitable cases, and, although, the appellant J1as been found guilty of corrnpt practices of quite an offensive kind, E yet, the Qrdcr for costs appears to us to err on the side of severity.

If the respondent Chagla is aggrieved in such a manner that he has grounds for some actionable claim against the appellant, he can, if so advised, take other steps which may be open to him . under the Jaw. An order for costs should not become a substitute for such other action with which we are not concerned here. Moreover, in the

case before us, the petition itself was not filed by the 2nd respondent Chagla. In these circumstances, we do not think that there should have been an order for costs payable by the appellant to the second respondent Chagla. We, therefore, set aside the order awarding Rs. 3,000/- as costs to Chagla, We also reduce by half the costs awarded to the successful petitioner, !hat is to say from Rs. 12,000/- to Rs. 6,000/-. We, however, think that the appellant must pay respondents I and 2 in this Court their costs occasioned by his appeal .

G to this Court.

The result is that, subject to the modifications of the order for costs, to the extent indicated above, this appeal is dismissed with costs to respondents I and 2 on whose behalf appearance was put il).

P.H.P.

Appeal dismissed.

' ,

ZIY AUDDIN BURHANUDDIN BUKHARI

BRIJMOHAN RAMDASS MEHRA & ORS

M. H. BEG

N. L. UNTWALIA, JJ.

Representation of the People Act

Section 123(2)

Section 123

section 123(2)

section 116A

Representation of the People Act, 1951

Section 123

Section 123

Section 123(3) and 123(3A)

Section 83(1)

Section 83

Code of Civil Procedure, 1908

Section 80

section 123(3) and 123(3A)

Section 86

Section 123

Sec. 123

Section 123

Section 123

Section 123

Indian Contract Act

Section 123

Section 123

Section 123(2)

Section 123(2)

Section 3

Section 159

Section 160

[1969] 3 SCR 400

Section 123

Section 123(3)

Section 123

Section 123

Section 123(31\.)

Section 123(3)

Section 123(3A)

Section 123

Section 123

Section 12

Section 123(3)

Section 123(2)

Section 123

Section 123(2), 123(3) and 123(3A)

Section 99

Section 99