LAXMINARAYAN DIPCHAND MAHESHWARI & ORS.

'MAHARASHTRA REVENUE TRIBUNAL & ORS.

February 13, 1975

[1{. K. MATHEW AND P. K. GOSWAMI, J).]

Bombay Telfllncy and Agricultural Lands (Vidarbha Region) Act 1958 ss.43(14A), 46(1) and 49A(1)-Scopc o/-S.46, if protected by Art. 31A. •

Section 46 ( 1) of e Bombay Tt:nancy d Agricultural Lands (Vidarbha Re. glon) Act, 1958, prov1des that notw1thstandmg anything contained in Chapter Ill ·

(containing ss. 38 to 57) the OWJ}ership of nil lands held by tenants, which they are entitled to purchase from the1r landlords under any of the provisions of that chapter, shnll &nd trnnsferred to and vest in such tenants on and from April 1.

t961. from vhtch date such te'}ants shal~ be deemed to be the full owners of such C lands. Sectton 43 ( 14A) provides that 1f a tenant fails to exercise his right of

purchase under s. 41 etc. te land shall be deemed to be surrendered to the land lords; and s. 49A(l) prov1d~ at notwithstanding anything contained in ss..41

311d 46 etc., on .and. from Apnl 1. 1963 the ownership of all land held by 8 tenant

(being land whtch 1s not transferred to the tenant under s. 46 or which is not pur chased by him under ss. 41 and 50), shall vest in such tenant

The Agricultural Lands Tribunal took action under s. 46 read with s. 48 of D the Act for fixing the price of the land in possession of the respondent who was

personally cultivating the land as a cultivating tenant under the appellant-landlord. The appellant contested the proceedings without success before the authorities under the Act as well as in a writ petition in the High Court. In appeal tb lhb Court, it was contended (1) that s. 49A is not applicable to the present case

as the opening non-obstante clause of that section makes no reference to s. 43(14A) while it specifically mentions ss. 41 and 46; (2) Since the tenant had not exercised his right to plll'chase the land in question under s. 43(14A) the land shall be deemed to have been surrendered to the appellant and no question of statutory E transfer of ownership of the land would arise; and (3) Se.ction 46 is violative of

Arts. 14 and 19(1 )(f) of the Constitution and is not saved by Art. 31A.

. Dismissing the appeal,

HELD : (l) Section 49A is no.t attracted in the instant case since that section provides for ownershit> of.land which is. not transferred\to the tenant under s. 46 or which is not purchased by the tenant under s. 41 or 8. SO. The present case deals with compulsory transfer of ownership under s!· 46.

[539H) ·

(2) Under. s. 46 the tenants became full owners of the land~ by operaon of law and there is a statutory vesting of the lands in them. 11us legal ':esting by operation of s. 46 on and from April t, 1961, cannot be diested m tho .

a.)>sence of any clear provision under the Act. Section 43 (14A) lS a prospechve Provision and was introduced in the Act by amendment on March .1. 1~2

and has no application. [S40A-D] . ·

(3) Son ~6 has achieved th~ twin purpose of extinisbment of the rishl of the landlord tn the estate and conferment of the same nght u~ the tenant. nee that happens, there is, in one breath, extinguishment of the ngbt In favour

. 1-1

/ 1~ State Mld the conferment of the said right in favour of the tenant .. Alcle rlA ts therefore clearly applicable and it cannot be contruned that there ts vtola-

•on of Arts. 14 and 19. [541A-C]

CIVIL APPELLATE JURisDICTION: Civil Aooeal No. 2609 .of 1969.

pPeal by Special Leave from the jridgment and order dat<:d the ~?t 1 h ~ril, .1969 of the Bombay High Co~ (Nagpur BeQc~) m spea Ctvil Appln. No. 1039 of 1966.

W. S. BarUngay, Sheil Sethi and Ganpat Rai, for the appellants.

SUPREME COURT REPORTS [1975) 3 S.C.it.

E. C; Agarwala, for respondent no: 2. A.

M. C. Bhandare and~· P. Nayar,. for respondent No. 5.

The Judgment of the Court was dlivered by

OoSWAMI, J. This petition by special leave is directed agchinst tl:le judgment of the Bombay High Court rejecting the appellant-landlords' application .under articles 226 and 22 7 of the Constitution with regud B to a revenue matter under the Bombay Tenancy and Agricultur~~ Lands (Vidarbha :Region) , A.ct, 1958 (briefly the Act). The second respon":' dent (hereinafter the respondent) was the cultivating tenant .under the· . . appellant-landlords.

It was never in dispute in any of the earllier pro-· ceedings that the respondent was personally cultivating the land as a . tenant.

'. On a report of the patwari submitted on Aprll 6, 1963, the Agricultural Lands Tribuna], Malkapur, took action under section 46 r'ad with section 48 of the Act for fixing the price of the land in possession of the respondent. The appGllants contested the proceeding without f-access and an appeal preferred before the Special Deputy Collector for Tenancy met with the .same fate. The appellants then preferred a peti:tion of revision before the Maharashtra Revenue Tribunal, Nagpur. That also fatld. As noticed earlier eventually the High Court also rejected the writ applicatiou. The short que..c; tion that had been persistently rafsed in .all the earlier proceedings and has been strenuously urged by Dr.

Barlingay before us is whether in view of section 43(14A) of the Act the order of the Revenue Tribunal is legally sustainab1e.

In order to appreciate the above submission it js necessary to look at the relevant provisions.

Section 41 ( 1) reads as follows :-

. 41. ( 1,) :: "Notwithstanding anything to the cuntnu:y in any law, usage or contract but subject to the provisions of :sections 42 to 44 (both inclusive) a tenant other than an O<:cu pancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the Iandlor~ the land held by him as a tenant and qlltivated by him personally". ·

It iS not necessary to quote section 42 which provides for the extent of land which a tenant may purchase under section 41.

. section 43(1)(a) and (14A) upon which much stress has been Ia.id:may be set out : ·

43(1 )(a.). "A tenant who desires to exercise the right conferred by section 41 shall make an offer to the landlord stating the price at which he is prepared to purchase the land, such price not exceeding twelve times the rent payable by him and the depreciated value of any structures, wells and embankments constructed and permanent fixtures made and the value of any trees planted on the land by the landlord after the period of the last Settlement or where no such Settlement is made dl.lring the period of thirty years before the comc

mencement of this Act and the amount of the arrears or rent,· if any, lawfully due on the day on which the offeris made".

43 ( 14A). "If a tenant fails to exercise his right of purchase under section 41 in respect of any land or the purchase of any land becomes ineffective, the land shall be deemed to

~ have been surrendered to .tne landlord, and thereupon the provisions of sub-sections (1) and ( 2) of section 21 and Chapter VI snail apply to such land as if the bind was surrendered by the tenant under section 20''.

The next material section is 46 ( 1 ) which reads as under :-

46( 1 J. "Notwithstanding anything in this Chapter or any . law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this Chapter shall stand transferred to and vest in,. such tenants and from such date such tenants shall be deemed to be the full owners of such Jands :"

• * * Section 49A(l) may aJso be read; 49A(l). "Notwithstanding anything contained ill section 41 or 46, or any custom. usage. decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day ot April 1963 the ownership of all land held IJY a tenant (being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is \:ultivated by him personally, and ... "

Ill * * * :): :jc it is submitted by Dr. Barlingay that since the tenant had not exercised his right to purchase the land in question, under sulr.section ( 14A) of sectioa 43 the land shall be deemed to have been surrendered to the landlords and no question of statutory transfer of ownership of the !and would arise. He also submits that section 49A is not applicable in the instant case as the opening non-obstante clause of that section makes no reference to section 43 ( l4A) while specifically mentions section 41 and section 46.

W'! may at once say that section 49A is not attracted in the instant case since the section provides for ownership of land . which is not transferred to the tenant under section 46 or which is not purchased .by. the tenant under section 41 or section 50. It is admitted by the learned counsel that the land in question was not purchased by the tenant under . section 41 or under section 50. The only c<:mtention is that this land· cannot be the subject matter for c_ompulsory transfer of . owner8hip

under section 46.

. 540

SUPREME COURT REPORTS [1975] 3 s.c.n.

Sub-section 14(A) of section 43 was inserted by Maharashtra Act 2 of 1962 with effect from March 1, 1962. On the other hand section 46 ( 1) brings about a legal consequence with regard to transfer of 0\mcrship of land to tenants on and from April 1, 1961. Section 46 ( 1) provides clearly and unambiguously that notwithstanding anything con-

. tained in Chapter III (containing sections 38 to 57) the ownership of n: all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from Apdl 1, 1961) from which dae such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the t(nanted lands hy operation of law and. there is a statutory vesting of the lands in C them. This legal vesting by operation of sectioll 46 on and from April 1, 1961, cannot be divested io absence of any clear provision under the Act to that effect only by reference to a prospective provision like subsction ( 14A) of section 43 which came by an amendment much later on March 1, 1962. It is, therefore, not even necessary to consider the l.egal effect of the amalam of the three sections, namely, sub-:section ().,

~14A) of section 43, section 46 and section 49A in this appeal.

We are satisfied the revenue authorities were justified in taking action under section 46 read with section 48 and the order cannot be challenged as

unsutainabJe in law.

The learned counsel next contends that section 46 of the Act is violative of article 19 ( 1 ) (f) of the Constitution and is not saved by article '31A which is not. applicable. Counsel sutmil" that under section 46 there is no acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such righto;; in order to come within the saving provision of article 31A(l) (a). According 1:· to counsel the laud is transferred from the landlord and vests in the tenant by virtue of section 46. There is, therefore, no acquisition by the State of any estate or of any rights therein nor is there any extinguishment or modification of such rights in favour of the State. Section 46 and such other provisions in the Act are in furtherance of agrarian ccforms which arc one of the principal objects or the Act. The fact G: that section 46 in terms transfers the land from landlord to tenant and vests the ownership in the latter docs not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole

rea~ that there is no express mention of such acquisition by the State bJ terms. Th.e scheme underlying the provisions may be briefly stated.

The .State being the paramount owner of the lands had earlier granted II the land to thf~ tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the

State will bavt: to take is to extinguish the rights of the tenure holders under the paramount owner. lt is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the landlord in the estate and conferment of the same right upon the tenant. Once that happens there iS in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the . tenant. There is, therefore, no substance 'in the contention that article 31A is not applicable in this case to enable the

appellan~ to challenge the provision under article 19(1)(f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation ofarticlc

Ot 4 of the Constitution.

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

V.t>.S.

A flpeal disnu:r;'>ed ..

LAXMINARAYAN DIPCHAND MAHESHWARI & ORS

MAHARASHTRA REVENUE TRIBUNAL & ORS

1{. K. MATHEW

P. K. GOSWAMI, J

ss.43(14A), 46(1) and 49A(1)

Art. 31A

Section 46

ss. 38 to 57

s. 41

s. 49A(l)

s. 46

ss. 41 and 50

s. 46

s. 48

s. 49A

s. 43(14A)

ss. 41 and 46

s. 43(14A)

Arts. 14 and 19(1 )(f)

Art. 31A

Section 49A

s. 46

s. 41

s. 46

s. 46

Section 43

Arts. 14 and 19

CIVIL APPELLATE JURisDICTION

W. S. BarUngay

Sheil Sethi

Ganpat Rai

A.

M. C. Bhandare

P. Nayar

OoSWAMI

articles 226 and 22

Aprll 6, 1963

Malkapur

section 46

section 48

Maharashtra Revenue Tribunal, Nagpur

Barlingay

section 43(14A)

Section 41

sections 42 to 44

section 42

section 41

section 43(1)(a)

section 41

section 41

section 21

section 20

Section 49A(l)

section 41

1st day ot April 1963

decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day ot April 1963 the ownership of all land held IJY a tenant (being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is \:ultivated by him personally, and ... "

Ill   * :): :jc it is submitted by Dr. Barlingay that since the tenant had not exercised his right to purchase the land in question, under sulr.section ( 14A) of sectioa 43 the land shall be deemed to have been surrendered to the landlords and no question of statutory transfer of ownership of the !

section 46

section 41

section 49A

section 43

section 41

section 46

section 49A

section 46

section 41

section 50

section 41

section 50

section 46

section 14(A)

section 43

March 1, 1962

section 46

April 1, 1961

Section 46

sections 38 to 57

section 43

section 43

section 46

section 49A

section 46

section 48

unsutainabJe

section 46

article 19

section 46

article 31A(l)

section 46

Section 46

section 46

Section 46

article 31A

article 19(1)(f)

article 31A


.:) 42

ANA.NDJI HARIDAS.& CO. PV't. LTD

ENGINEERING MAZDOOR SANGH & ANR.

February 13, 1975

(A. ALAGIRISWAMI AND R. S. SARKAR.IA, JJ.J

Bonus Act, 1965-.s. 'l(e)......Scope of-Speech of a Minister in Pa•liame111 tJr iLegislature--lf could be u.ied in consmdng a clear and unambiguouJ' provis/011.

Secti0n 7 of the Bonus Act provides as to how the dircc:t tax payable by an employer is to be calculated for the purpose of computing the available surplus. <Clause (e) of s. 7 enacts that no ao::ount shall be taken of any 'rebate' or 'relief' or deductio11 in the payment of any direct tax allowed unde~ any law for the time 'being in force relating to direct !axes or under the relevant annual F:innnce Act .for the development of anv industry,

In the case of an industrial company, which is not a company in which public '1l'e substantially interested, the Finance Act. 1966 fixed the rate of income-lax at

55% on so. much of the total income as did not ex.:eed Rs. ten lak.lis, on the IJalance, if any, of the total income 60% and 65 % in the case of n, iy other company.

In a dispute between its employees and the appellant, which is an1 industrial company the latter contended that for the purpose of computing the available surplus it Wi!S entitled to deduct direct tax at 65% and not 55% which was only a concessimlal levy amounting to a 'relief' for the purpose of development. The Tribunal accepted the contention of the appellant. The High Court allowed the 1 espondent's writ petition under Art. 227 of :he Constitution holding that the com- pany being an industrial company could not claim deduction at a rate higher than 55 % in cakulating the available surplus.

On appeal it was contended that the 10 % concession in the rate was given to industrial companies with a view to promote development of industry and as such must be deem•d to be a 'relief or 'rebate' in !he payment of direct ta)[ contemplated bv s. 7(e\ of th<> Bnnir; Act Rrli<>ncr fo• thi• ha~ h-en nlaced on the speech of the Finance Minister on the budget for the year 1966-67.

Dismissing the appeal,

HELD : (I) The company being an industrial company with total income not . ,;:xceeding rupees ten lakhs the rate of tax under paragraph l(A)(2) 0) of the Finance Act, 196~ applicable to it was 55% and not 65% of the total income.

[544H-545A]

(2) The 'rebate or relief' in the payment of any direct tax, in ord.er to fall within the purview of s. 7(e) of Bonus Act. must be a rebate or relief "allowed under any law for the time being in force relating to direct taxes or under the relevant Finance Act. for the development of any ind11stry" which is one of the condi'ions to be satisfied.

Jn the present case it did not satisfy this c:ondition.

The Finance Act, 1966 did not say that this difference of 10% in the rate of tax applicable to an industrial .ompany and any other company is to be deemed to be a rebate or relief for the development of industry. No• has it been shown that this diffe'ence in the rates i;; allowed as a rebate or relief under any other .extant Jaw relating to direct taxes.

[545F-H] .

3 (a) It was not permissible to use the speech of the Finance Minister to -construe the clear language of the statute.

[545C-DJ

(b) As a general principle of interpretation, where the words of a statute are plain, rirecise and unambiguous the intention of the Legislature has to be gthered

from the language of the statute itself and no external evidence such as ParlialllCll H tary debates. Reoorts of the Committees of the Legislature or even the statement made bv the Minister on the introduction of a measure or by the framers of the Act is admi<Sible to construe to.e words. It is only whece a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more

. ~:-; Xl\iDJl HARlDAS L ENGG. MAZDOOR si\."IGH (Sarf:.lli'ia, J.)

S 4 3

.1 han one meaning or .shades of meaning that external evidence as to the evils. if

any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words in question.

F545I>-FJ

CIVU. APPELLATE JURISDICTION: Civil Appeal No. 2053 of 1971.

Appeal by special leave from the Judgment & Order dated the 8th July, 1971 of the Bombay High Court in S.C.A. No. 1346/68.

M. C. Bhandare, P. H. Parekh and S. Bhandare, for the appel- .lant.

The Judgmenfof the Court was delivered by

SARKAR!A, J.-Whether the difference of 10 per cent between an Industrial Company and other Companies in the levy of Income-tax provided in the Finance Act, 1966 is to be construed a "rebate" or "relief'' in the payment of any direct tax, for the development of an industry for the purposes of s. 7(e) of the Payment of Bonus Act, 1965, (for short, the Bonus Act) is the short question that falls to be answered in this appeal by special leave.

The appellant is a Private Ltd. Company. It manufactures automobile ancilliaries and other goods in its Factory at Bombay.

It employs about 170 workmen.

The workmen demanded bonus for the year 1964-65. Their demand was not met by the C-Ompany.

C-Onci- Jiation proceedings before the Conciliation Officer having failed, the dispute was submitted to the Government which by its Order, dated May 2, 1967 referred the same for adjudication to the Industrial Tribunal.

One of the points moot~ before the Tribunal was, whether in calculating the available surplus, the direct tax payable by the Company was deductible at the rate of 55 per cent or 65 per cent.

The case of the Mazdoor Sangh (ResPondent No. 1) was that the rate should be 55 per cent as the Company was paying the tax at the rate only, As against this, the Company contended that it was entitled to deduct as per s. 7(e) of the Bonus Act, direct tax at the normal rate of 65 per cent and not at 55 per cent which was only a concessional levy amounting to a "relief" for the purpose of development.

The Tribunal accepted the contention of the Company.

After referring to the speech of the Finance Minister on the Budget of 1966- 67, the Tribunal held : I

" .... while the private companie& have been normally assessecl to income tax at the rate of 65 per cent, those engaged in industrial undertakings have been assessed at !he concessional rate of 55 per cent, as a measure of reridermg

assistance to their growth.

Such a concession would. unquestionablv amount to relief for the purpose of development as contemplated bv Section 7 ( e) of the Act."

Aggrieved, the Mazdoor Sangh impugned the Tribunal's Award, dated 29-2-1968, by a Writ Petition under Article 227 of the Con

stitution before the High Court of Bombay. The High Court held that the Company being an Industrial Company, was liable to pay tax under the Finance Act, 1966 at the rate of 55% only on its total income after deducting depreciation. Therefore it could nor claim deduction at a rate: higher than 55% in calculating the availabfo surplus. In the result, the High Court set aside the Award and remitted the case to the Tribunal for further disposal in accordance with Jaw. Hence this appeal by the Company.

Broadly, the scheme of the Bonus Act is this : At first, the gross profits derived by an employer from an establishment arc calculated in the manner specified in the First Scheduie, or the Second Schedule, whichever may be applicable ( s. 4). On the basis of such gross profits, the available surplus for the particular accounting year is computed.

This is. done by deducting therefrom the sums referred to in Section 6.

According to Clause (cl of Section 6, one of the sums so deductible is :

"Subject to the. provisions of Section 7, any direct tax. which the employer is liable to pay for the accounting year in res.peel: of his income, profits and gains during that year".

S.::ction 7, to which s. 6( c) is subject, provides how for the purposes of the Act, the direct tax payable by the employer is to be calculated ..

Oaue ( e) of Section 7 is material.

It runs thus :

"no account shall be taken of anv rebate (other than development rebate or development allowance) or credit or relief or deduction (not hereinbefop~ mentioned in ''m section) in the payment of any direct tax allowed under any law for the time being in force relating to direct taxes. or under the relevant annual Finance , ct, for the development of any industry", .

The rates of income-tax applicable to Private Lt<l. Companies under Paragraph F, Part I of the First Schedule fixed by the Finance Act, 1966, arc as follows :

I. In the c:ase of a domestic Company-

( A) (1) ....

(2) where the Company is not a company in which the public are substantially interested.

(i) in the case of 211 industrial Company-

(1) on so much of the total income as <locs not exccd

Rs. 10,00,000-55 per cent.

(2) on the balance, if any of the total income--60 per cent.

(ii) in any other case-65 per cent of foe total income".

., It is n?t disputed that the Company being an industrial Company Wllh total mco:me for the relevant year, not exceeding Rs. 10,00,000,

ANANDJI HARIDAS \I, ENGG. MAZDOOR SANGH (Sarlctrria, /.) 545

the rate of tax under the above Paragraph I(A)(2)(i), applicable to it was 55 per cent and not 65 per cent 01 the total income.

However, Mr. Bhan.dare's contention is that this was only a concessional rate and not the normal rate which was prescnbcd under Clause (ii) of the above Paragraph I(A) (2). The point pressed into argument is that this ten per cent concession in the tax-rate was given to Industrial Companies with a view to promote development of Industry and, as such, must be deemed to be a "relief" or "rebate" in the payment of direct tax of the kind contemplated by Section 7 ( e) of the Act.

Reliance for this contention has been placed on the speech of the Finance Minister on the Budget of 1966-67, wherein he propased to provide "certain reliefs" which he considered "necessary for providing a suitable climate of growth", and, in that context, described the rate of 55% tax on Industrial Companies as a "concessional rate".

We arc afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clenr and unequivocal.

It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words.

AS a general principle of interpretation, where the words of a statute arc plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.

It is only where a statute is not exhaustive or where its language is ambiguous. uncertain. clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the . statute was intended to remedy, or' of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the words ln question.

In the case before us, the language of Section 7 ( e) is crystal clear and self-contained. It indicates in unmistakable terms that the 'rebate or relief' in the payment of anv direct t:ix ; n order to fa 11 with; n the purview of this clacse must satisfy two conditions, viz.,

(i) that it must be a rebate or relief "allowed under any law for the time being in force relating to direct taxes or under the relevant annual Finance Act'', . and further, (ii) that it must be a relief or rebate for the deveopment of anv Industry. In the present case, condition (i) is lackmg.

The Finance Act, 1966, docs not say that this difference of 10 per cent in the rates of tax applicable to an Industrial Company and any other Company is to be deemed to be a rebate or relief for the development of Industry. Nor has it been shown that thi< niffcrence in the rates is allowed as a rebate or relief under any other extant law relating to dirCCL taxes.

'fbc High Court was, therefore; right in holding that it was not permissible to use the speech of the Finance Minister to constrne the dear language of the statute.

For the forgoing reasons the question posed above is answered in the negative and the appeal is dismissed.

As regards the costs, the delay in payment of the bonus caused B by the pendency of this appeal has been amply compensated vid1~ this Court's order dated February 17, 1972, which is to this effect :

'The order of ex-parte stay is mage absolute on the condition that the petitioner-appellant shall pay six percent interest on any amount that is found payable by the appellant to the respondent-workmen from the date the award become enforceable till the disppsal of the appial fu 0 this Court, in case the amieal fails in this Court\."

The appeal has been heard ex-parte, we therefore make no order as to costs.

Ol'.B.R.

A ppea[ dismissed.

42

ANA.NDJI HARIDAS.& CO. PV't. LTD

February 13, 1975

A. ALAGIRISWAMI

Bonus Act, 1965

s. 7

Art. 227

s. 7(e)

Finance Act, 1966

S 4

Bombay High Court

M. C. Bhandare

P. H. Parekh

S. Bhandare

SARKAR!A

s. 7(e)

Payment of Bonus Act, 1965

Bombay

May 2, 1967

Mazdoor Sangh

s. 7(e)

Section 7

Article 227

High Court of Bombay

Finance Act, 1966

Second Schedule

s. 4

Section 6

Section 6

Section 7

s. 6( c)

Section 7

ANANDJI HARIDAS

ENGG. MAZDOOR SANGH

Bhan.dare

Section 7

Section 7

Section 7

Finance Act, 1966

February 17, 1972


SUDARSHAN MINERAL CO. LTD.

UNION OF INDIA & ANR February 13, 1975

54 7

LK. K. MATHEW, P. K. GOSWAMI AND N. L. UNTWAUA, JI.]

Tlze Mines & Minerals (Regulation & Developmelll) Act 1951-, Mi11erai' Concession Rules 196Q-.:.Whet/ier detailed rule making power restricts the General Rule making power-Maximum drild m1t spei:ified whether void on account of uncertainty-Whether renewal of tl/c lease .has to oc granted 011 the same term.•. and c; onditions. ·

The appellarrt was granted a Mining Lease by the erstwhile State of Shahapurn for a period 20 years commencing from 12th August, 1941. The area of the lease was 1500 sq. miles. The said area later on, formed part . of the State of Rajasthan. The Mines & Minerals (Regulation .& Development) Act, 1957, came into force from 1st June, 1958. Under section 61 of the Act the area of a mining lease in the case of Mica could not be more than 10 sq. miles and. its maximum priod could not exceed 20 years as provided in section 8. Section 16 confers powers to modify a mining lease accorded before 1949 to bring it in conformity with the Act and the Rules.

In exercise of this power. the.

Controller of Mica leass reduCed the mining area to 10 sq. miles and the. rent . was duced from Rs. 8 per acre as fixed by the original lease to Rs. 6 /- per acre. The period of 20 years of original lease .; a e to an end iu 196h The appellant applied to the Crllvemment of Rajasthan f r renewal of its lease

for another 20 years under rule 28.

The renewal was ranted but the. dead: rent was increased from Rs. 6 to Rs. 8 per ocre. The a Hant challenged t11e order of Rajasthan Government by filing a Revision befor the Central Oovrn

ment which was dismissed. Thereafter. the appellant fil the present suit for a decree of injooction restraining respondents from chargin dead rent @.Rs. 8 per acre and for a declaration that they are entitled to c . arge only @ Ril •. 6 per acre. The suit was decreed by the trial court but .was dismissed by the First App!llate Court. The dismissal was maintained b~ the. Higb Court iro. 'ict, ind Apir.al. On appeal by Speial Leave, the appellant contended : ·

(I) Under thoagreement. dated. 20-11-1959 the lase was to be governed by the A, ct and the Rules except in/" regard to dea.d. re'nt was fixed at Rs. 6/- per ar.:re. · ··· . '

( 2) Under Rule 28 of the Rules, the State Governnlent while reney.--

ing .the lease had power to reduce the "rea ut no power k ' increase the dead rent. . . . .. : . / . ·

 i3) Ruk 'J.7 does not apply to renewal of a le.as~.

(4) ciause (c) of si1Ji:Rule (ly t Ruic 27 i~ ultra Vires us .it transgresses the rnle making power under ction 13(2}{g) of. the

A~I. ., . . .. . .

(5) Rule 270}(c) if.made appllcabldo renewal of a minin11 Ieac

introduces 001 element of uncertainty il\id is therefore void.

HELD: Rukmaklng power is to be found in section 13 (!). Section f3(2J merely illustrates the nature of the power, it does not restrict the general power under section 13 (I) .. The rule could ha e beeri framed even under section

13(2){g). [549C]

HELD FURTIIBR : There is no element of uncertainty in the rule either le> the grant of fresh leas~ or in respect of the renewal. The maximum limi1 is contained in Chapter IV .. To provide for payment of dead rent it ha~ specified rates slibfct to variation within the limit specified. These cttnnot hi: said to be void on account of uncertainty.

[550C]

.548

SUPREME COURT REPORTS [1975) 3, S.C.lt.

HELD FURTHER : The contention that the renewed lea5e had to be

ranted on the same twns and conditions and that no term and c:onditioo could be varied while granting the renewal of the lease except in regard to the reduction of the area in accordance with rule 28(5) was negatived was not corm:!. If in the original lease of 1941 there was a renewal clause one could probably say th:kt the renewal had to be on the same terms and conditions . but in the absenee of such a right of rcn:wat to the kscc the argument was not sound. '.rhe deman,1 of Rs. 8 per acre was within the limit spedfied by Schc<lule JV and w:t5 in accordance with law.

The appeal was dismis!1ed with :o\tS.

[55 JB .. D)

CIVlL APPELL\JE JURISDICTION : Civil Appeal No. 2305 of 1969.

Appeal by Special Leave from the Judgment & Order <lated the 8th August, 1969 of the Rajathan High Court in S. B. Civil Second . Appeal No. 236 of 1966.

P. C. Bhartari, for the Apoellant.

Girish Chandra, foe Respondent No. J.

S. M. la.in, for Respondent No. 2.

The Judgment of the Court was delivered by

UNTWALIA, J. This is a plaintiff's appeal by special leave of this Court from the Judgment and decree of the Rajasthan High Court whereby the plaintiff's second appeal from the decision of the First Appellate Court was dismissed and the dismissal of its suit was maintained.

The fact!\ of the case lie in a narrow comp:iss und may usefully be stated at the outset. The plaintiff was granted a mining lease for mining mica by the erstwhile State of Shahpura for a period of 20 years commencing from the 12th August, 1941. The area of the leru; e purported to be 1500 sq. miles. In due course the mining area in ques tion came to form part of the State of Rajasthan. The Mine.~ and Minerals (Regulation and Development) Act, 1957-hereinafter called the Act-came into force from 1st June, 1958. Under-section 6(1) of the Act as it stood at the relevant time the area of a mining kase in tile case of mica could not be more than 10 sq. miles and its maximum period could not exceed 20 years as provided in section 8. Section 16 confers power on the approi:riate authority to modify a mining lease granted before 24th October, 1949 to bring it in conformity with the Act and the Rules made thereunder. In exercise of this power and in accordance with the Mining Leases {Modifications of Terms) Rules, 1956 the Controller of Mica Leases, Nagpur, reduced the mining area of the appellant lease to 10 sq. miles by his order dated November 20,

1959. As per Rule lO(l)(a) of the said Rules a compensation of Rs. 10/- only was fixed by agreement between the parties for reduction of the area, and by the same order the dead rent at the rate of Rs. 8/- per acre per annum fixed by the original lease was rcducedJo Rs. 6/· per acre. The period of 20 years of the original lease came to an end on August H, 1961. The appellant applied to the Government of Rajasthan for renewal of its lease for another 20 years. This was do11e in accordance with Rule 28 of the Mineral Concession Rules, 1960hcrciuafter called the Rules. The Government of Rajasthan granted the renewal by order dated December 13, 1961 for a period of 20 years

SUDARSHA'i \1!NERAL co. v. UNION (Untwalw, J.) 549with effect from August 12, 1961. The dead rent fixed for the renewetl lease was Rs. 20/- per hectare which comes to Rs. 8/- per acre. The appellant challangcd the order of the Government of Rajasthan by tiling a revision before the Central Government in accordance with Rule 54 of the Rules.

But the revision was dismissed.

Thereupon it filed a suit against the Union of India, respondent no. l and the State of Raja.than, respondent no. 2 for a decree of injunction to restrain the defendants from charging de8.d rent at the rate of Rs. 8/- per acre per annum and for a dedaration that they arc entitled to charge only at the rate of Rs. 6/- pC'r acre.

The suit was decreed by t11c Trial Court but was dismissc:d by the First Appellate Court. The dismissal was maintained by the High Court in second.appeal.

Mr. Y. S. Chitlay, learned counsel for the appellant, pressed the following five points in support of this appeal :

ll) Under the agreement dated 20-11-1959 the lease was to be governed by the Act and the Rules except in regard to dead rent whicli was fixed at Rs. 6/- per acre.

(2) Under Ruic 28 of the Ruh:s, the State Government while renewing the lease had power to reduce the area but no power to increase the dead rent.

(3) Rule 27 docs not apply to renewal of a Jcas1:.

(4) Clause (c) of Sub-Ruic (1) of Rule 27 is ultra vires

as it trangresscs the rule making power under section 13(2) (g) of the Act.

(5) Rule 27(1) (c) if made applkablc to rcne\Yal of a mining lease introduces an clement of uncertainty and is therefore void.

Learned counsel for the respondents combated the appellants argument in all respects.

In our opinion none of the contentions put forward on behalf of the appellant is fit to be accepted and the appeal must fail.

As is well settled the power to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for purposes connected therewith is to be found in sub-section ( l) of section 13. Sub-section (2) merely illustrates the nature of the power. It Llocs not restrict the general power under sub-section (1). Even under clause (g) of sub-section (2) in particular the Rules may provide the

tcnn~ on which and the conditions subject to which any mining foasc may be granted or renewed.

Sub-Ruic ( 1) of Ruic 27 requires every mining lease to be subjected to the conditions enumerated in clause (:i) to (n) and such conditions have got to be incorporated in every mining lease.

The conditions enumerated in clause (a) to (o) of Sub-Rule

(2) arc optional and n mining lease may contain such other conditions ; i_s the State Government may deem necessary in regard to them.

Rule 27(1)(c) reads as follows: "The Jca.e hall pay, for c\'cry y<.!ar, except the first year nf the leas.:, such yearly dead rent within the limits specified

sso SUPREMB COURT ltEPORTS

/ J 975] JS.CR.

ln-Schedule IV as may be fixed from time to time by the State Government and if the lease permits the working of more than one mineral in the same area, the State Govem· -ment may charge separate dead rem in respect of each

111ineral :

Provided that the Jessee shall be liable to pay the dead rent or royalty in respect of each mineral whichever be higher in amount but not both."

There is no element of uncertainty in the Ruie either in regard to the grant 'Jf fresh lease or in respect of the renewal.

The yearly dead rent to be fixed from time to time by the State Government cannot exceed t'le limit specified in Chapter IV.

The maximum limit is therefore certain. To provide for payment of dead rent at a specified rate s11bject

to variation within the limit specified in Schedule IV, is a term which cannot be said to be void on account of uncertainty, nor is it beyond the Rule making power c,0nferred on the Central Government under section 13 of the Act.

The 4th and 5th points urged on behalf ol' the appellant therefore fail.

Rule 27(1) makes it incumbent to subject every mining lease to the conditions enumerated in that subrule. The renewal of lease cannot be outside Rule 27 (I). A lease granted under the Rules and the renewal made thereunder will nci. occasion any difficulty at all in. the application of the conditions enumerated in sub-mle (1) to both. But the scope for .argument in this case arose because .the original lease wa.~ granted in 1941 by the erstwhile State.

The modifications were made in the year 1959 in accordance with the Act of 1957 and the Mining Leases (Modification of Term~) Rules, 1956. The Rules of 1960 were then not in existence. The question which deserves careful consideration, therefore, is-whether there is any substaoce in dtber of the first or second points urged on behalf of the appellant.

The Controller of Mica leases prepared a note and passed a final order on the 20th November, 59 recording the modifications of the terms of the mining lease dated 12-8-1941 specifically stating therein that the said foase was for 20 years "without a renewal clause". After providing that ·dead rent. shall be payable at the rate of Rs. 6/- per acre per annum", it was mentioned "The following clause shall be decflled to be inserted in the Jease deed and shall form part thereof : ) "Except for the modifications made by this order, the .tease shall be subject to the Rules made or deemed to have

been made under sections 13 and 18 of the Mines and Minerals (Regulation and Development) Act, 1957 (No. 67 of l-9~7).''

. It.was submitted on behalf of the appellr.nt that when renewal: of the lease was granted under Rule 28 of the Rules then the State Government was bound to act upon and incorpc>rate the new clause inserted in the original lease by order dated 20-11-1959; , In other words, it was contended that the renewed lease had to be granted on the same terms and conditions.

No term and condition coUld be varied while

' ~

SUDARSHAN MINERAL co. v. UNION (Untwalia, J.) 55 l

granting the renewal of the lease except in regard to the reduction of the area in accordance with sub-Rule (5) of Rule 28. That being so, the agreement stressed was that in view of the new clause operation of Rule 2 7 (1) ( c) was excluded in regard to the dead rent, it was not payable at any rate different from Rs. 6/- per acre.

In our judgment the argument though attractive is not fruitful.

If in the original lease there would have been a renewal clause giving a right to tlie lessee to have the renewal of the lease for another period of 20 years at its option one could probabily say that the renewal had to be on the same terms and conditions.

In that event the new clause inserted in the original lease by order dated 20-11-1959 could possibly be said to overri9e the mandatory requirement of Rule 27(1) (c). But in absence of such a right of renewal to the -lessee the said clause was operativeand effective only during the period of the original lease i.e. upto 11th August, 1961. The lease renewed thereafter was a renewal of the origipal 1ease ia one sense and a fresh lease in another.

While granting a fresh lease the Governmental authority has no power to relax the mandatory requirement of sub-Rule (1) of Rule 27 of the Rules.

By agreement it cannot take the conditions of the lease out of the said provision. It is, therefore, clear on the facts and in the circumstances of this case that while granting the renewal of the lease, the authority was neither bound nor empowered to incorporate a condition in the lease against clause

(c) of Rule 27(1). The demand of dead rent at Rs. 20/- per hectare i.e. Rs. 81per acre was within the limits specified in Schedule IV of the Rules and there was no mfirmity in it.

For the reasons stated above we !ind no merit in this appeal.

It is accordingly dismissed with costs.

P..H.P. . Appeal dismissed;

4-470SCl/75

SUDARSHAN MINERAL CO. LTD

UNION OF INDIA & ANR

February 13, 1975

LK. K. MATHEW

P. K. GOSWAMI

12th August, 1941

State of Rajasthan

1st June, 1958

section 61

section 8

Section 16

Rajasthan Government

section 13

section 13

section

13(2)

CIVlL APPELL\JE JURISDICTION

P. C. Bhartari

Girish Chandra

S. M. la.in

UNTWALIA

Shahpura

section 6(1)

section 8

Section 16

24th October, 1949

Nagpur

November 20,

1959

August H, 1961

Government of Rajasthan

Mineral Concession Rules, 1960

December 13, 1961

August 12, 1961

Union of India

State of Raja.than,

Y. S. Chitlay

section 13(2)

section 13

Schedule IV

Schedule IV

Central Government

section 13

20th November, 59

sections 13 and 18

11th August, 1961

Schedule IV of the Rules


.. " .,

PRABHU NARAYAN v.

A. K. SRIVASTAVA ' February 14, 1975 [A. ALAGIRISWAMI, V. R. KRISHNA lYER AND R. S. SARKARJT, JJ.)

Representation of the People Act (43. of 1961) Section 83 and 123 011d B Co11tlucr of Election Rules, 1'. 94A-Proviso to s. 83( 1 )-Scope of.

In the election to the State Legislative Asembly the responent wa_s declared elected and the appellant, the congress cand1datc. fild an electiOn pehtion chat- Jenging the election on various grounds, one of wh1ch was that the respondent was guilty of corru.pt practice under s. 123 ( 4) of the Representation of th Pcopb Act. 1951, in that cer_ta-if! pamphlets were published by him or with hi~ consent. The petition was dtsmtssed by the High Court,

Allowing the appeal to this Court, C HELD : 1 (a) There is no substance in the preliminary objection of the respondent that th~ elccti(;>n petition hould have been dismissed on -the ground that it did not comply w1th the rcqutremcnts of s. 83 of the Act and that the evidence of printing the pamphlets, in any event, should not have been admitted. [553D-FJ ·

The charge against the respondent in the election petition w~ that the respondent was responsible for the publication of the pamphlet5 and not their D printing.

Evidence regarding printing was only relied upon to corroborate the evidence regarding distribution of the pamphlets.

When s. 123(4) speah of publication it means distribution. Therefore, failure to give particulars of the printing in the affidavit in support of the election petition cannot lead to the dismissal of the petition: nor could evidence regarding it be shut out.

The proviso to s. 83( 1) lays down that where the petitioner alleges any corrupt practice the petition should also be accompanied by an affidavit in the prescribed form in support of the allegation ot soch corrupt practice and the particul~ E thereof. It does not say that the allegation of corrupt practice and particulars thereof .should be given in the affidavit. Th: election petition contains the allegations of corrupt practice and particulan thereof. The Form 25, which i!

the one preribed under r. 94A of the Conduct of Election Rules also shoW'! that this was the intention of the l.egislature. Jn the present cnse the affidavit

filed in support of the election petition is in accordance with. that prescribed form.

[.S.HF-H] Viumlra Kumar Saklrcha v.

JaRiivan. [19721 1 SCC 826 nnd Krishon F Clwndu v. Ram Lal. [1973] 2 SCC 789, referred to.

_ ..$;

(b) Funhermore, according to s. 86 of the Act only petitions which do not com ply with the provisions of srs. 8 t 82 nnd 1 17 are Jiable to be dismissed. \~

{5SSC] '

(2) The High Court was wrong in rejecting wholesale every bit of evidence adduced on behalf of the appelhmt.

Even taking the evidci'\Ce adduce~ on

hehlf of the nppellant of nly n-on-congress witnes~~- that evidence est:Jbltsher G that the people who got pn nted the variou~ pamphlet5 are clase supporterc; 0 the rec; pondcnt.

Thoo; e persons hud no pedal grievance against the oppellnt but all the pamphleh have been printed with the definite purpose of h3r0ltng the chance~ of the 2ppellant in the election and threbv aiding thoe of

1~ re-.pondent.

Th~ plan and the direction could therefore have come onlv fro:;' one \.Ource and that i~ the rt"">pondent.

Hence, it muc; t be held th~ t respondent Wll' uihy of the corrupt pr:ctice under \. 123(4) in rc~~-t of thramrhlct\. (561 D-E. G; ~62C] il

CiVIL APPtLL.\Tr. JcRtSDICTIO~: Civil Appeal No. 117~ o( 1973

From the judpnent and order dated the 5th April. 1973 of tbe bdhya Prde\h High Court in Election Pdition No. 29 of 1972.

_ ...... ......-

P. NARAYAN V, A. K. SRIVASTAVA (A/agiriswami, J.) 55 3

Y. S. Dharanwdhikari, T. P. Naik and A. G. Ratnaparkhi, for the

appellnt.

S. K. Gambhir and V. J, Francis, for the respondent.

The Judgment of the Conrt was delivered by

ALAGIRISW AMI, J. In the election held on 11th March, 1972 to the Legislative Assembly of Madhya Pradesh from Dar1oh constituency the respondent, an independent candidate, Was declared elected. The appellant, the Congress candidate filed an election petition for declaring the election of the respondent void on various grounds all of which were found not proved by the learned Judge of the High Court of Madhya Pradesh who tried the petition. The petition was consequently dismissed and this appeal is against that dismissal.

We are concerned only with the charge of corrupt practices under section 123 ( 4) of the Representation of the People Act in respect of five .pamphlets marked Exs. P-3, P-4, P-5, P-6 and. P-8 and two public meetings held on 4-3-1972 and 8-3-1972. .

At the beginning of the arguments an objection was raised on behalf of th~ respondent that the election petition should .have been dismissed on the ground that it did not comply with the requirements of section 83 of the Representation of the People Act. This was on the basis that the affidavit filed in support of the election petition did not give details as to the material particulars in respect of the various corrupt practices with which the respondent was charged. It was argued in the alternative that in any case no evidence should have been admitted.

As far as this appeal is concerned both amount to the same thing because charges with which we are concerned are charges under section 123 ( 4) . We do not think that there is any substance in this contention on behalf of the respondent.

On behalf of the appellant it was made clear that the only charge made in the petition was the charge of publication of the pamphlets and not their printing and evidence regarding the printing was relied upon only to corroborate the evidence regarding distribution of the pamphlets.

It is obvius that when section 123 ( 4) speaks of publication it means distribution.

Mereprinting of the pamphlets would not fall under section 123 ( 4). Therefore the failure to give particulars of the printing cannot lead to the dismissal of the petition. Nor could evidence regarding it be shut out.

The proviso to section 83 (1) lays down that where the petitioner alleges any corrupt practice, the petition shaH also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It does not say that the allegation of corrupt practice and particulars thereof

shor.d be given in the affidavit. The election petition contains the allegation of corrupt practices and particulars thereof. That this is the intention of the Legislature is also clear from a perusal of Form 25, which is the one prescribed under Rule 94A of the Conduct of Elections Rules. The affidavit filed in support uf the election petition is in accordance with that form.

Reliance Wa)) placed en behalf of the respondent on the decision of this Court in Virendra Kumar Saklecha v. Jagjivan C). In that case Rule 9 of the Madhya Pradesh High Court Rules in respect of election petitions, which states that the rules of the High Court shall apply in so far as they are not inconsistent with the Representation of the People

Act, 1951 or other rules, if any made thereunder or the Code of Civil Procedure in respect of all matters including inter alia affidavi's, was reierred to.

On the basis of that rule Rule 7 of the Madhya .Pradesh High Court Rules which states that every affidavit should clearly express how much is a statement made on information or belief and must also state the source of or grounds of information or belief with sufficient

particultuity, was stated to mean that grounds or sources of information art! to be Set out in the affidavit.

This would really mean that the ailegations found in the body of the election petition would have to pe repeated in the affidavit.

However, in that case the failure to conform to Rule 9 and Rule 7 of the Madhya Pradesh High Court Rules was not held to be fatal to the elction petition. What was said was that it would be helpful in assessing the value of the evidence. But that purpose is served by the allegations in the election petition itself.

Moreover, it appears to us that the provisions of Rule 9 of the Madhya Pradesh High Court Rules regarding the election petitions framed by the Madhya. Pradesh High Court by reference to Rule 7 of the Madhya Pradesh High Court Rules found in Chapter III regarding affidavits cannot be made use of for this purpoe. The former set of rules are made under Article 225 of the Constitution and cannot make qny substantive law and the rules themselves on a perusal of them woufd show that tney relate merely to procedural matters unlike rules made under section 122 of the Code of Civil Procedure.

In Krishan Chander v. Ram Lal('2) it was pointed out that :

"When there are specific Rules made under the Act which govern the election petitions, no other Rules are applicable.

Nor is disclosure of the source of information a requisite under Order 6, Rule 15 ( 2), C.P .C. Decisions rendered under Order 6, Rule 15 and Order 19, Rule 2 of the Code of Civil Procedure have no relevance and do not support the submission that if the affidavit in support of the petition does not state the source of information on which the several allegations in the petition are based, those allegations cannot be deeme(1 to have been made . .._

The provision for setting out the sources of information where the allegations have been verified as having been made on information and knowJedf!e of the petitioner is not a requisite prescribed under Rule 94-A of the Conduct of Election Rules, 1961, which are appiicable to the fi1ing of an election petition.

The affidavit in support of an eleotion petition need not itself disclose the sources of information.

The election petition under Section 83 (1) (b) itself must contain all the

(l) [1972J 1 sec 826.

(2) [1973] 2 sec 759.

P. NARAYAN V. A. K. SRIVASTAVA (AJagiriswami, J.) 55 5

particulars thalt are necessary and in the affidavit in support of the petition the petitioner is required to say which of the allegations made in various paragraphs of the petitiop. are true fto his knowledge and which of them are true to his information. 1f any sotJrce of information has not been set out and the respondent cannot answer them without particulars, he can always apply for better particulars. If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of the information have not bee!1 given, the allegations made in the petition have to be ignored." This accords with the view which we have taken.

Furthermore, according to section 86 of the Representation of the People Act only petitions which do not comply with the provisions of Section 1 or .

Section 82 or Section 117 are liable to be dismissed. We, therefore, overrule the preliminary objection.

With respect to these five documents there is no dispute tat they fall within the mischief of section 123 ( 4) and it is'1herefore unnecessary to set out the contents of these pamphlets, nor was it seriously contended except in the case of Ex. p_g that they were not circulated. The only l]uestion is whe.thcr the circulation was made by the respondent or with his consent.

In considering this question it is important to bear in mind that all the persons who admit that they printed these pamphlets are workers of the respondent. We will deal with the evidence in dw.~ course.

It is necessary to go into the question cf the printing of these t"amp}!Iets because evidence regarding it will have a bearing on their distribution either by the respondent or by his supporters with his consent.

Though as many as 67 witnesses were examined and 28 of them with regard to publication, the learned trial Judge has rejected all of them. Where the question of publication and distribution is a matter to be decided on the basis of oral evidence, it is easy to dispose•of them by saying that it is of persons interested in the appellant. That is why a discussion of the question regarding the printing should provide a satisfactory method of assuring cneself as to whether the distribution was .made as aileged by the appellant.

We shall now tal~·~ up the question regarding .Ex.P-3 first. It has admittedly been printed by M. S. Suman. It was printed at Chhabi Pri'ating Press.

This M. S. Snman was polling agent of the respondent. Chhabi Printing Press was next to the residence of the respondent.

P.W.66, the son of the owner of the printing press gave evidence that the manuscript for the pamphlet '''as given to Suman for correction a'!1d the respondent himse1f made the correction. P.W.67

gave evidence that Suman placed the order for Ex.P-3 and produced the Or!cr Book, Ex.P-19.

He also gave evidence that the manuscript was given to him by the respondent who was accompanied by Suman

and one Vi~::>d Kumar Rai.

Exs. R.9 and R.lO are the declarations in respect of the pamphlet given by Suman. Admittedly also the respondent had phced other orders with Chhabi Printi'ng Press.

Ex.P-3 and Ex.P-52 show that one of the payments out of the tot•al sum of Rs. 130 mentioned in these receipts corresponds to a sum of Rs. 50 said to have been paid for this printing.

Ex.P-52 was

filed by the respondent along with the account of his election expenses.

P. W .1 gave evide'11ce that Suman worked for the respondent in the election and he and Vijay Kumar Agarwal, who is responsible for the printing of Ex.P-4, accompained the respcndent on his eJection propaganda.

Respondent's witness, Vi jay. Kumar Malaiya, R.W. 3, also admits that Suman worked for the respondent. Therefore, even if that part of the evideace of P. Ws.66 and 67, where they speak to the respondent's part in the printing of this pamphlet is not accepted. it is obvious that Suman isa person very much interested in the respondent and there is no particular wason why he should print a defamatory parr:phlet against the appellant.

We are leo to believ~ that inspirati<Ya for printing that pamphlet must have come from the

rspondent. We are not impressed with the evidence of Suman that t!1c poamph; cts were not handed over to him before 11.3. 72 and so it was not distributed. It was merely an attempt indirectly to deny di.stribution.

He even went to the extent of saying that he did not \VOrk for the respondent.

The next pamphlet is Ex. P-4. 1t was got printed by one Vijay Kumar Agarwal, ~- mere boy of 14 or 15 years. It was printed at th~ Jawahar Pre£.s where his foather:s paper \vas printed. According to Vijay Kumar Agarwal, who was examined as R.W.18, he got this Ex.P-4 printed because Ex.R-24 contained the merits of the appellant and the dem<rits of the respondent. But Ex.R-24 does not say anything about the merits of the appeUant.

H~ says that he gave the order for printing it at 8.30 p.m. a',1cl lu got it at 11.30 p.m. and he

disributcd it to any person who met him in the bazar and went home

thcreal:ter, We are unable to accept this part of the evidence. This is merely an attempt to belittle the distribution.

Though he also gives as •a reason for his printing Ex.P-4 t11at his father was called to the police station, that was nearly four years earlier and that is hardly likely to be a retLson for his printing it.

He went to the extent of saying that he did not work for the respondent in the election and he did not support trc respondent in the election.

A reading of the pamphlet clearly shows that it could not be his h•andiwork, that the brain behind it is some body else's, whether it is Smltosh Bharti's to whom he took it or nor.

He is one of the persons whose name promi-

Ihntly appears among those who worked for the respondent in the

clect'ion. He is also a young boy of 14 or 15. Here again we are led to believe that Ex.P-4 was not printed by Vijay Kumar Agarwal on his own but that it should have bee'.l done at somebody else's ins-

'ance and that being incompatible with any other author, could only be the respondent.

Exhibit P .5 was printed by one Dm Prakash Rai.

It was printed at the Chhabi Printing Press on 18-2-72. This Om Prakash Rai was a wry prominent worker of the respondc,, t.

The respondent did not even dare to put Om Prakash Rai on the witness stand to deny tbe fact that he printed Ex.P-5 with the consent of the respondent. 1-lc was so deeply committed to the respondent that it would have been vcrv difficult £or him to explain why he printed it. In the circumst:.inces we do not think that the learned judge was corect in rejecting

P. NARAYAN V. A. K. SRIVASTAVA (A/agiriswami, J.) 55 7

the evidence of P.Ws! 66 and 67 who speak to the respondent's part in it and the paynent made by him.

We see no improbability in the receipt for the payment being dated 27.2.1972 and !he payment being made on 18.2.1972. This expenditure also is shown in respondent's account of the election expenses.

Then we come to Ex.P-6. This purports to have been published by a certain Jagruk Matdat'a Parishad. Whether there was such a Parishad or not, there was a Samyukta Morcha and that Morcha was supporting the respondent. It consisted of almost all non-Congress parties. The declaration in respect of this document was given by one Ajit Modi who also is an active worker of the respondent. His brother and father also were respondent's partisans. Our conclusion about this document is the same as in respect of the other documents.

The last document for consideration is Ex.P-8. It was printed in the Kailash Printing Press and the son of the proprietor was ex•amined as P.W.64.

He spoke to the responde11t's part in the printing of this document. One of the reasons for disbelieving him was that his father

nlso gave evidence. But his father did not gie any evidence prejudicial to the respondent. The printing of this p phlet was admitted by R.W.2, Ramesh Clrand Jain, an advocate, o got it printed along: with Atul Kumar Shrivastava, a cousin of ; the respondent. But their .case was that it was. printed in order to prent it to the Chief Minister, Mr. P. C. Sethi when he was ex.pected)o visit Damoh on 28-2-1972 and as he did not do so the pamphlets were destroyed: It is an impossible story and we refuse to believe it. If they wanted-to make

an~ representation it was not necessary to print 2000 copies.

We do not believe those would have bee•,, destroyed.

This again is an attempt to meet the case of distribution. Both Atul Kumar Shrivastaya and Rames11 Chand Jain are very strong partisans and workers for the respondent and here again we are satisfied that they should have been printed with the consent of the respondent.

The learned Judge has, as we have already observed, disbelived all the cvide1ace on behalf of the appellant. If the witness was a Congress man he was not to be believed as he was a Congress lJlan. The respondent would not have been foolish enough to handover the pamphlets to the witness. If he was a non-Congress man he was a

tcmilnt of a Congress man or a tenant of a relative of a Congress man and therefore could not be believed. In certain cases he has disbelieved the evidence of witnesses on the ground that they were not on visiting terms with the respondent. But elections being what they arc no candidate could afford to ignore a voter on the ground that the voter had not visited him nor be could be disbelieved on the ground that he had not gone to the voter earlier. Elections take the candidatcs to all sorts of places. If a witne5's said that he did not tell the appellant about his having received the pamphlet a doubt is raised as to how the appellant knew about the distribution of the pamphlet.

I\.fany of 'the criticism are very unsubstantial. However we would discuss this question solely o'a the evidence of non-Congress witnesses and . show how the evidence regarding distribution is quite 'Jcceptable.

P.W.l is a member of the Bhartiya Jan Sangh. He is the Vice- President of the Mundal Jan Sangh of Damoh. The respond(mt had the support of the Bhartiya Jan Sangh Bhartiya Kranti Dal and. Congress ( 0). He had gone along with Om Prakash Rai for canvassing for the respondent.

Vijay Kumar Agarwal •and Suman also accompained him.

According to this witness Raghubar Modi, father of Ajit Modi, who printed Ex.P-6, Umanath Agarwal father of Vijay Kumar Agarwal, and Vinod R•ai were workers of the respondent.

Om Prakash Rai was an active canvasser in the election campaigll of the respondent. The only criticism against him was that he is a tenant of Shri Prabhud•ayal Mukhariya, a good Congress worker. Om Prakash Rai is a'J1 active member of the Jan Sangh.

We see no reason why his evidence as far as it goes cannot be accepted. It helps to fix the role of many of the persom who played an important part in the publication of the pamphlets.

P.W.2 is a doctor holding a M.B.B.S. degree, who has been practising in Damoh since 1936. He is a member of the Hindu Mahasabha.

He was also the President of the Hindu Maasabha at Danicih:and a Secretary of the Provincial Hindu Mahasabha. He speaks to having attended the meeting dated 4th March, 1972 and of Vijay Kumar Malaiya, Om Prakash Rai, and Raghubarprasad Modi father of Ajit Modi, being present on the dais and to the respondent proposing Vijay Kumar Malaiya to the Chair. Om Prakash Rai also spoke at that: meeting. He also speaks to the respondent having given him Exs.P-3, P-4 and P-5 on 1Oth March. 1972. It was elicited from him that he was a tenant of a cousin of the 'appellant. To a question by the Court he said that he had no visiting terms with the respondent but he added that the respondeat must have come to his house as he was distributing the leaflets.

We see no reason; why this witness should not be believed. The learned judge's criticism regarding this witness and the rejection of his evidence cannot be supported.

P.W.4 is a kirana shopkeeper.

He had taken no interest in the election of any candidate.

He speaks about the meeting pr(!ided over by Vijay Kumar Malaiya who was proposed by the respondent as the president. He speaks to Raghubar Prasad Modi speaking at that meeting as also to Om Prakash Rai's speech. He speaks to the presence of P.W.2 at that meeting.

P.W.5 is a retired Sub-Inspector of Police. He speaks to his having attended the n1eeting on 4-3-1972 and refers to the speech made by Raghubar. Prasad Modi, Om Prakash Rai and the respondent.

He also speaks to the respo•adent having given him Exs.P-3, P-4 & P-5 on lOth March.

He was :1ot working for any candidate in the election.

A suggestion made to him was that his brother was sentenced to death in a murder c'JSe and the murdered man was a relative of the respondent. . ·

P.W.6 does not be'la.1g to any political party nor did he work for any of the candidates in the election. He speaks to the rJeeting held on 4th March 1972 to support the respondent addressed by Om Prakash Rai, Vijay umar Malaiya and also to the respondent giving him pamphlets Exs.P-3 and P-4. ·

P. NARAYAN V. A. K. SRIVASTAVA (AJagiriswami, J.) 55 9

P.W.7 is a retired Assistant Conservator of Forest and belongs to no political party a•ad he did not work for any body in the election.

peaks to the respondent giving him Exs.P-3 and P-4.

P.W.ll spe'aks to respondent having given him Ex.P-3.

He is not shown to belong to any party. ·

P.W.l9 is a member of the Jan Sangh and he publishes a newspaper 'Bundeli Garjanis'. He speaks to P.W.l a'ad Om Prakash Ra~ working for respondent, as also Raghubar Prasad Mod1 and his sons Ajit Modi and Kamal Modi, Uma Agarwal and his son V. K. .Ag:uwal as wll as Atul Kumar Shrivastav, respondent's cousin.

P.W.24 is a member of the Jan Sangh party who worked for the respondent in l1is election. He speaks to respondent givi•ag him Exs.

P-3 and P-4. He speaks to Om Prakash Rai being present a1ong with the respondent at that time.

He speaks to respondent giving him 10 or 11 leaflets for distribution.

P.W.26 worked for the respondent in his election. He speaks to respondent accompanied by Vinod Kumar Rai having come to his Mahalia and his being given leaflets for distribution. He also speaks of having gone to the respondent's house and having seen Vinod Kumar Rai there.

P.W.65 is another witness who was engaged by the respondent to distribute the pamphlets.

It is unnecessary to go on multiplying the evidence.

We have deliberately excluded the evidence of Co11grcssmcn, Congress sympathisers or people who had worked for the Co'11gress candidate. It is interesting to see the way that the learned Judge boas dealt with this question of distribution.

He says that the respondent is a practising lawyer and had contested three elections and it does not look probable that he would have gone with Suman and Vinod Kumar Rai to the printing press for getti'.1g Ex.P-3 printed.

P.W.2's evidence is not believed on the sole ground that if the respondent hoacf been careful enough to have Ex.P-3 printed through a worker he would not himself gq 0n distributing the pamphlet.

There is also a factual mistake in that the learned Judge seems to proceed on the basis that P.W.2 is a Congressma'1l which he is not. P.W.5's evidence is not accepted because he ad not told •anybody about the distribution of the pamphlet.

P.W.6 is taken to be an interested witness because he had shown the pamphlet to the appellant.

But immediately thereafter the learned Judge goes on to say that it is worthy of note that no one amongst the witnesses, although they were local and some of them were very much interested i'a the oappellant, either gave the pamphlets said to be received by them to the appellant himself or to his brothers.

We do not see the interest for them to give the pamphlets to the appellant as the distribution seems to have been well-known. P.W.7 is said to be an interested witness because he said he only received rwo pamphlets and that he was not aware whether any pamphlets on behalf of the Congress candidate was distributed or not. P.W.ll is disbelieved o,, the basis that the respondent would not have had time to distribute it at !">arr.oh having been present at village Bhuri some time c•arlier and in Bilai smile time later. It appears one has to pass through Damoh

on way from Bhuri to Bilai. Nor could we agr_ee that because . th_is witness's brother, who is an advoc&te was not g1ven a pamphlet. 1t 1s surprising that the respondent would himself distribute the :aewspaper and the pamphlet to the witness in the presence of his brother l~:twyer and involve himself in a corrupt practice. The substance of the .!earned Judge's criticism about most of the evidence regardjng distrib~ tion is that the respondent an advocate a person well seasO'J.1ed m election matt~rs would not himself distribute the pamphlets. The evidence of P.Ws.38 and 39 is not believed, one of the reasons for that being that respondent had engaged P.Ws. 26 and 65 for distribution, he himself would not do so. We CO'asider that the evidence of P.Ws.26 and 6.5 has been rejected on unsubstantial grounds.

We should mention, however: th•at \ve do not place any reliance upon the evidence of Raghvendra Singh Hazari, R.W.S about the distribution of the pamphlets. We are thus satisfied that the distribution has b'; e11l made by the respondent himself in some cases as also through P.Ws.~6 and 65. The part played by his storng supporters and rel:atives in bringing into existence the various pamphlets goes to probabilise the distribution of the pamphlets either by the respondent or at his instance.

We shall now sec how the learned Judge deals with the question of printing. The leamed Judge considers that P.W.66 has been brought in simply to connect the respondent with Ex.P-3. Vijay Kumar Malaiya says that Raghubarprasad Modi of the B.K.D. as well as Ramesh Chand Jain used to attend sometime the meetings of the Samyukta Morcha. Raghubarprasad Modi is the proprietor of the Jawah'dl Printing Press.

He gives the names of Vijay Kumar Agarw<ll. Om Prakash Rai, Vinod Kumar Rai, Ramesh Chand Jain and Rammanohar Shrivastava the electio111 •agent of the respondem as respondent's supporters. He also says that whatever election campaign was done for the respondent by the Samyukta Morcha it was by occasion'Jl consultation with the respondent that he is not able to say whether each worker and supporter of the respondent did every thing in cmnection with the election in consultation with the respondent.

He speaks of Om Prakash Rai working for the respondei1t.

R.W.2, Ramesh Chand Jain, gives the name of Raghubarprasad Modi, Ajit Modi's father as one of the members of the Samyukt'a Morcha. In the far-e of this evidence it is difficult to accept the respondent'~: evidence that Atul Kumar Shrivastav, Suman, Om Prakash Rai and Ajit Modi were not his agents; so also the assertion that Om Prakash Rai had never accompained him in his election campaign. Similarly his denial that he was not financed by the Samyukta Morcha and he himself did not finance it.

He however had to accept that Ramesh Chand Jain, Atul Kumar Shrivastav and Om Prakash Rai worked for him.

He went to the length of denying that the. cash memo Ex.P.Sl, which bears the name of his own election agent, Ram Manoharlal Shrivastava,

relates to his election expenses and he does not know who is that person.

He has filed Exs.P-52 and P-53 along with his election expenses and admits that Ex.P-52 is the ori!3ina1 of Ex.P-23 'and Ex.P-53 is the original of Ex.P-51.

Only thereaft'r was he compelled to tdmit

. P. NARAYAN V. A, K. SRIVASTAVA (Afagiriswmni, ].)

5G 1

that he had got some printi'ag done from the Chhabi Printing Press.

He even pretended that he did not know that R. K. Shrivastav•a's sigmture is found it Ex.P-53 and could not say whether he was the

son of his election agent Rammanoharlal Shrivastava or not.

R. K.

Shrivastava as well as Raghubarpras•ad Modi's son Suresh Chand were

his polling agents. He had to admit that Ex.P-68 bears the sigilaturc of Om Prakash R•ai, which is a declaration for Ex.P-5. He had also to admit that Ex.P-69 and Ex.R-21 bear Om Prakash Rai's signatures.

He had to admit that Ex.P-71. the declaration from for Ex.P-70, which was printed by him, beoars his signature and one of the identifying witness is Vinodkuniar Rai.

His extensive prevarication during the <:ourse of his evidence clearly shows that he is 11ot a person on whose evidencemuch reliance can be placed.

See paras 38 to 4Q and 43 to 47 of .

C his evide.nce.

It is difficult to accept the assertion of Suman who says that he did not work for the election of the respondent. He was 'his polling agent and a person who gets a pamphlet like Ex-P-3 printed is certainly not a dish1terested person. , .

After a thorough and an?Cious examination of the evidence in this case we have come to the conclusion thtat. the people who got printed Exs.P-3, P-4, P-5, P-6 and P-8 are close supporters of the respondent.

They have no special grievance against the appellant, ccrtai', lly not enough to make them go to the extent of having them printed of their own. Two of them. Vi, iay Kumar Agarwal and Suman are mere boys of 14 and 15. They have merely been made use of by somebody and that somebody in the proved circumstances of this case could only be the respo'adent. We arc; not able to accept the evidence of Vijay Kumar Agarwal that he got the pamphlets at 11.30 p.m. on the night of the 1Oth March and he distributed it to a few people. Nor are we able to accept the evidence of Suman that though he gave the matter for printing on the 1Oth he got the pamphlets only on the 11th and so he did not distribute them.

We find the evioence of P.Ws.66 and 6T that it was given for printi'11g on the 9th more acceptable. We are unable to accept the assertion of Ramesh Chand Jain that he got Ex.

P-8 printed in order to hand it over to the Chief Minister when he was due to arrive at Damoh on he 28th of February but that he destroyed . them because the Chief Minister did not turn up.

All these p•amphlets have heen printed with a defh1ite purpose that is of harming the chances of the appellant in the election and thereby aiding the respondent. The plan and the direction could have come only fi-om one source that is the respondent. He has made use of his supporters, two of .them young boys of 14 and 15, to get the pamphlets printed in their names so that they could take the responsibility and he may disown the responsibility for them.

We have discussed the evidence of only non-Congress witnesses and we can.see no reason to reject them. We do not agree with the learned Judge who rejected wholesale every bit of evidence adduced on behalf of the appellant.

Whether the evidence of F.Ws. 66 and 67 about the part played by the respondent with regard to the pamphlets -.printc.~..i in the Chhabi Printing Press and of Kailash Chand Nakra with

Tegard to the pamphlets printed in the Kailash Press are correct or 110t~

we are convinced beyond reasonable doubt that the respondent is the

'guiding brain and hand behind all of them. He and his supporters must have planned all these things together.

He has m'ade his witnesses admit just enough so that a red herri.1g might be drawn across the trail and blame may attach to them and not to him. The fact that he is an •advocate or that it is the third election in which he is stand- B ing is •ao guarantee against his being responsible for this.

Then there is the question of two meetings dated 4.3.1972 3nd 8.3.1972. We do not think it necessary to examine this branch of the case in view of the earlier findings.

In the result therefore we hold that the respondent is guilty of a corrupt practice under section 123 ( 4) in respect of the pamphlets C Exs.P-3, P-5; P-6 and P-8.

The appeal is •allowed and the respondent's election is declared to be void.

Th~ respondent will pay the appellant's costs.

Appeal allowed.

V.P.S.

PRABHU NARAYAN

A. K. SRIVASTAVA

A. ALAGIRISWAMI

Representation of the People Act

Section 83 and 123

s. 83( 1 )

s. 123

s. 83

s. 123(4)

s. 83( 1)

s. 86

P. NARAYAN V

A. K. SRIVASTAVA

Y. S. Dharanwdhikari

T. P. Naik

A. G. Ratnaparkhi

S. K. Gambhir

V. J, Francis

ALAGIRISW AMI

High Court of Madhya Pradesh

section 123

Representation of the People Act

section 83

Representation of the People Act

section 123

section 123

section 123

section 83

Act, 1951

the Code of Civil Procedure

Pradesh High Court Rules

Pradesh High Court by reference to Rule

Article 225

section 122

the Code of Civil Procedure

Order 6, Rule 15

Order 6, Rule 15

Order 19, Rule 2

the Code of Civil Procedure

Conduct of Election Rules, 1961

Section 83

sec 826

sec 759

P. NARAYAN

AJagiriswami

section 86

Representation of the People Act

Section 1

Section 82

Section 117

section 123

M. S. Suman

M. S. Snman

Chhabi Printing Press

Suman

Kumar Rai

Chhabi Printi'ng Press

Vijay Kumar Agarwal

Vi jay. Kumar Malaiya

Vijay Kumar Agarwal

Smltosh Bharti

Dm Prakash Rai

Om Prakash Rai

P. NARAYAN V. A. K. SRIVASTAVA

Ajit Modi

Kailash Printing Press

Ramesh Clrand Jain

Atul Kumar Shrivastava

P. C. Sethi

Damoh

Atul Kumar Shrivastaya

Rames11 Chand Jain

Bhartiya Jan Sangh

Mundal Jan Sangh of Damoh

Bhartiya Jan Sangh Bhartiya Kranti Dal

Om Prakash Rai

Vijay Kumar Agarwal

Raghubar Modi

Umanath Agarwal

Vinod R•ai

Om Prakash Rai

Prabhud•ayal Mukhariya

Jan Sangh

Danicih

Vijay Kumar Malaiya

Raghubarprasad Modi

Om Prakash Rai

Raghubar Prasad Modi

Raghubar. Prasad Modi

Vijay umar Malaiya

Om Prakash Ra~

Raghubar Prasad Mod1

Ajit Modi

Kamal Modi

Uma Agarwal

V. K.

Atul Kumar Shrivastav

Jan Sangh party

Vinod Kumar Rai

Bhuri

Bilai

Raghvendra Singh Hazari

B.K.D.

Ramesh Chand Jain

Samyukta Morcha

Jawah'dl Printing Press

Vijay Kumar Agarw

Rammanohar Shrivastava

Ramesh Chand Jain

Suman

Ram Manoharlal Shrivastava

R. K. Shrivastav•a

Rammanoharlal Shrivastava

R. K.

Shrivastava

Raghubarpras•ad Modi

Suresh Chand

Om Prakash R•ai

Vinodkuniar Rai

Vi

Kailash Chand Nakra

Kailash Press

section 123