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Appeal No. 35 of 1959.
Appeal from the judgment and decree dated October 29, 1956, of the Allahabad High Court in Writ Petition No. 327 of 1956.
H. N. Sanyal, Additional Solicitor General of India, J. B. Dadachanji, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellants.
G. C. Mathur and C. P. Lal, for the respondents.
1960, December 13.
The Judgment of Imam, Kapur, Das Gupta and Dayal, JJ. was delivered by Das Gupta, J. Ayyangar, J. delivered a separate judgment.
DAS GUPTA, J.
This appeal is against an order of the High Court of Judicature at Allahabad rejecting the appellants ' application under article 226 of the Constitution.
The first appellant is the Diamond Sugar Mills Ltd., a public limited company owning and operating a sugar factory at Pipraich in the District Gorakhpur, for the manufacture of sugar from 244 sugarcane.
The second appellant is the Director of the company.
By this application the appellants challenged the imposition of cess on the entry of sugarcane into their factory.
On February 24, 1956, when the application was made the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (U. P. XXIV of 1953), was in force.
Section 20 of this Act gave to the Governor of U. P. the power to impose by notification "a cess not exceeding 4 annas per maund on the entry of sugarcane into an area specified in such notification for consumption, use or sale therein".
This Act it may be mentioned had taken the place of an earlier Act, the U. P. Sugar Factories Control Act, 1938, section 29 of which authorised the Governor of U. P. to impose by a notification after consultation with the Sugar Control Board under the Act "a cess not exceeding 10 per cent of the minimum price, if any, fixed under section 21 or 4 annas per maund whichever was higher on the entry of sugarcane into a local area specified in such notification for consumption, use or sale therein".
Notifications were issued under this provision for different crushing seasons starting from 1938 39, the last notification issued thereunder being for the crushing season of 1952 53.
These notifications set out a number of factories in a schedule and provided that during 1952 53 crushing season cess at a rate of three annas per maund shall be levied on the entry of all sugarcane into the local areas comprised in factories mentioned in the schedule for consumption, use or sale therein.
Act No. XXIV of 1953 repealed the 1938 Act.
The first notification under the provisions of section 20 of the 1953 Act was in these terms: "In exercise of the powers conferred by sub section (1) of section 20 of Uttar Pradesh Sugarcane (Regulation of Supply and Purchase) Act, 1953; (U. P. Act No. XXIV of 1953) the Governor is pleased to declare that during the 1954 55 crushing season, a cess at a rate of three annas per maund shall be levied on the entry of all sugar cane into the local areas comprised in the factories mentioned in the Schedule, for the consumption, use or sale therein".
245 Similar notifications were also issued on October 23, 1954, for the crushing season 1954 55 and on November 9, 1955, for the crushing season 1955 56.
The appellants ' factory was one of the factories mentioned in the schedule of all these notifications.
On the date of the application, i.e., February 24, 1956, a sum.
of Rs. 2,59,644 9 0 was due from the first appellant and a further sum of Rs. 2,41,416 3 0 as liability on account of cess up to the end of January, 1956, also remained unpaid.
The appellant contended on various grounds that section 20 of Act XXIV of 1953 was unconstitutional and invalid and prayed for the issue of appropriate writs directing the respondents the State of U. P. and the Collector of Gorakhpur not to levy and collect cess on account of the arrears of cess for the crushing season 1954 55 and in respect of the crushing season 1955 56 and successive crushing seasons and to withdraw the notifications dated October 23, 1954, and November 9, 1955 , which have been mentioned above.
During the pendency of this application under article 226 before the Allahabad High Court the U. P. Legislature enacted the U. P. Sugarcane Cess Act, 1956 (U. P. XXII of 1956), repealing the 1953 Act.
Section 3 of this Act as originally enacted was in these words: "The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein: Provided that the State Government may like.
wise remit in whole or in part such cess in respect of cane used or to be used in factory for any limited purpose specified in the notification.
Explanation: If the State Government, in the case of any factory situate outside Uttar Pradesh, so declare, any place in Uttar Pradesh set apart for the purchase 'of cane intended or required for use.
consumption or sale in such factory shall be deemed to be the premises of the factory.
(2) The cess imposed under sub section (1) shall 246 be payable by the owner of the factory and shall be paid on such date and at such place as may be prescribed.
(3) Any arrear of cess not paid on the date prescribed under sub section (2) shall carry interest at 6 per cent.
per annum from such date to date of payment.
" There is a later amendment by which the words "four annas" have been altered to "twenty five naye paise" and the words "Gur, Rab or Khandsari Sugar Manufacturing Unit" have been added after the words "factory" in sub section (1).
These amendments are however not relevant for the purpose of this appeal.
Section 9 of this Act repealed section 20 of the Sugar Cane (Regulation of Supply and Purchase) Act, 1953.
Sub sections 2 and 3 of section 9 are important.
They are in these words: "2.
Without prejudice to the general application of section 24 of the U.P. General Clauses Act, 1904, every notification imposing cess issued and every assessment made (including the amount of cess collected) under or in pursuance of any such notification, shall be deemed a notification issued, assess ment made and cess collected under this Act as if sections 2, 3 and 5 to 8 had been in force at all material dates.
Subject as provided in clause (1) of Article 20 of the Constitution every notification issued cess imposed and act or thing done or omitted between the 26th January, 1950, and the Appointed date in exercise or the purported exercise of a power under section 29 of the U. P. Sugar Factories Control Act, 1938, or of section 20 of the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953, which would have been validly and properly issued, imposed, done or omitted if the said sections had been as section 3 of this Act, shall in law be deemed to be and to have been validly and properly imposed and done, any judgment, decree or order, of any court notwithstanding.
" The position after the enactment of the U. P. 247 Sugarcane Cess Act, 1956, was that the imposition and assessment of cess that had already been made under the 1953 Act would operate as if made under the 1956 Act.
In view of this the first appellant, the Diamond Sugar Mills Ltd., prayed to the High Court for permission to raise the question of constitutionality and validity of the 1956 Act.
It also prayed for the issue of a writ in the nature of mandamus directing the respondents not to levy cess upon the petitioners appellants under this new Act, the U. P. Sugarcane Cess Act, 1956.
This application was allowed and the High Court considered the question whether section 3 of the U. P. Sugarcane Cess Act, 1956, 'empowering the State Government to impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for the consumption, use or sale therein was a valid law.
The principal ground urged in support of the appellants ' case was that the law as enacted in section 3 was invalid and that it was beyond the legislative competence of the State Legislature.
Several other grounds including one that the provisions of the section went beyond the permissible limits of delegated legislation were also raised.
All the grounds were negatived by the High Court which accordingly rejected the appellants ' petition.
The High Court however gave a certificate under Article 132(1) and also under article 133(1)(c) of the Constitution and on the basis of that certificate the present appeal has been filed.
Of the several grounds urged before the High Court only two are urged before us in appeal.
One is that the law was invalid, being beyond the legislative competence of the State legislature; the other is that in any case the provision giving the Governor power to levy any cess not exceeding 4 annas without providing for any guidance as to the fixation of the particular rate, amounted to excessive delegation, and was accordingly invalid.
The answer to the question whether the impugned law was within or beyond the legislative competence of the State legislature depends on whether the law falls under Entry 52 of the State List 248 List II of the Seventh Schedule to the Constitution.
It is quite clear that there is no other entry in either the State List or the Concurrent List under which the legislation could have been made.
Entry 52 is in these words: "Tax on the entry of goods into a local area for consumption, use or sale therein".
Section 3 of the impugned Act which has already been set out provides for imposition of a cess on the entry of sugarcane into the premises of a factory for use, consumption or sale therein.
Is the "premises of a factory" a local area within the meaning of the words used in Entry 52? If it is the legislation was clearly within the competence of the State legislature; if it is not, the law was beyond the State legislature 's competence and must be struck down as invalid.
In considering the meaning of the words "local area" in entry 52 we have, on the one hand to bear in mind the salutary rule that words conferring the right of legislation should be interpreted liberally and the powers conferred should be given the widest amplitude; on the other hand we have to guard ourselves against extending the meaning of the words beyond their reasonable connotation, in.
an anxiety to preserve the power of the legislature.
In Re the Central Provinces & Berar Act No. XI V of 1938 (1) Sir Maurice Gwyer, C. J., observed: "I conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of correcting any supposed errors".
Again, in Navinchandra Mafatlal vs The Commissioner of Income Tax, Bombay City (2) Das, J. (as he then was) delivering the judgment of this Court observed: ". . .
The cardinal rule of interpretation however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most (1) , 37.
(2) [1955] 1 S.C.R. 829.
249 liberal construction should be put upon the words so that the same may have effect in their widest amplitude.
" Our task being to ascertain the limits of the powers granted by the Constitution, we cannot extend these limits by way of interpretation.
But if there is any difficulty in ascertaining the limits, the difficulty must be resolved so far as possible in favour of the legislative body.
The presumption in favour of constitutionality which was stressed by the learned counsel for the respondents does not take us beyond this.
On behalf of the appellants it has been urged that the word "local area" in its ordinary grammatical meaning is never used in respect of a single house or a single factory or a single plot of land.
It is urged that in ordinary use the words "local area" always mean an area covering a specified region of the country as distinguished from the general area.
While it may not be possible to say that the words "local area" have acquired a definite and precise meaning and the phrase may have different connotations in different contexts, it seems correct to say that it is seldom, if ever, used to denote a single house or a single factory.
The phrase appears in several statutes, some passed by the Central Legislature and some by the Provincial or State Legislatures; but in many of these the words have been defined.
These definitions being for the peculiar purpose of the particular statute cannot be applied to the interpretation of the words "local area" as used in the Constitution.
Nor can we derive any assistance from the judicial interpretation of the words "local area" as used in the Code of Criminal Procedure or other Acts like Bengal Tenancy Act as these interpretations were made with reference to the scope of the legislation in which the phrase occurs.
Researches into dictionaries and law lexicons are also of 'no avail as none of these give the meaning of the phrase "local area".
What they say as regards the meaning of the word "local" offers no guidance except that it is clear that the word "local" has different meanings in different contexts.
32 250 The etymological meaning of the word "local" is "relating to" or "pertaining to" a place.
It may be first observed that whether or not the whole of the State can be a "local area", for the purpose of Entry 52, it is clear that to be a "local area" for this purpose must be an area within the State.
On behalf of the respondents it is argued that "local area" in Entry 52 should therefore be taken to mean "any part of the State in any place therein".
So, the argument runs, a single factory being a part of the State in a place in the State is a "local area".
In other words, "local area" mean "any specified area inside the State".
The obvious fallacy of this argument is that it draws no distinction between the word "area" standing by itself and the phrase "local area".
If the Entry had been " entry of goods into any area of the State. . . some area would be specified for the purpose of the law levying the cess on entry.
If the Constitutions were empowering the State Legislatures to levy a cess on entry of goods into any specified area inside the state the proper words to use would have been "entry of goods into any area. . . " it would be meaningless and indeed incorrect to use the words they did use "entry of goods into a local area".
The use of the words "local area" instead of the word "area" cannot but be due to the intention of the Constitution makers to make sure that the power to make laws relating to levy on entry of goods would not extend to cases of entry of goods into any and every part of the state from outside that part but only to entry from outside into such portions of the state as satisfied the description of "local area".
Something definite was sought to be expressed by the use of the word "local" before the word "area": The question is: what exactly was sought to be expressed? In finding an answer to the question it is legitimate to turn to the previous history of constitutional legislation in the country on this subject of giving power to legislature to levy tax on the entry of goods.
In the State of Madras vs Gannon Dunkerley & Co., Ltd.(1) (1) ; 251 this Court referred with approval to the statement of law in Halsbury 's Laws of England, Vol.
II, para.
157, p. 93, that the existing state of English law in 1867 is relevant for consideration in determining the meaning of the terms used in the British North America Act in conferring power and the extent of that power.
This has necessarily to be so as in the words of Mr. Justice Brewer in South Carolina vs United States (1) "to determine the extent of the grants of power, we must, therefore place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have understood to be the meaning and scope of those grants.
" Turning now to the previous legislative history we find that in the Government of India Act, 1935, Entry 49 of the Legislative List (List II of the 7th Schedule) was in the same words as Entry 52 of the Constitution except that instead of the words "taxes" as in Entry 52 of List II of the Constitution, Entry 49 List II of the Government of India Act, used the word "cess".
In Government of India Act, 1915, the powers of the provincial legislatures were defined in section 80A. 'Under clause (a) of the third sub section of this section the local legislature of any province has with the previous sanction of the Governor General power to make or take into consideration any law imposing or authorising the imposition of any new tax unless the tax was a tax scheduled as exempted from this provision by rules made under the Act.
The third of the Rules that were made in this matter under Notification No. 311/8 dated December 18, 1920, provided that the legislative council of a province may without the previous sanction of the Governor General make and take into consideration any law imposing or authorising a local authority to impose for the purpose of such local authority any tax included in Schedule II of the Rules.
Schedule II contained 11 items of which items 7 and 8 were in these words: 7.
An octroi 8.
A terminal tax on goods imported into a local (1) ; 252 area in which an octroi was levied on or before 6th July, 1917.
Item 8 was slightly modified in the year 1924 by another notification as a result of which it stood thus: 8.
A terminal tax on goods imported into or exported from a local area save where such tax is first imposed in a local area in which an octroi was levied on or before July 6, 1917.
Octroi is an old and well known term describing a tax on the entry of goods into a town or a city or a similar area for consumption, sale or use therein.
According to the Encyclopedia Britannica octroi is an indirect or consumption tax levied by a local political unit, normally the commune or municipal authority, on certain categories of goods on their entry into its area.
The Encyclopedia Britannica describes the octroi tax system in France (abolished in 1949) and states that commodities were prescribed by law and were divided into six classes and for all the separate commodities within these six groups maximum rates of tariff were promulgated by presidential decree, specific rates being fixed for the three separate sorts of octroi area, established on the basis of population, namely, communes having (1) less than 10,000 inhabitants, (2) from 10,000 to 50,000 and (3) more than 50,000.
While we are not concerned here with other features of the octroi tax system, it is important to note that the tax was with regard to the entry of goods into the areas of the communes which were local political units.
According to the Shorter Oxford English Dictionary "commune" in France is a small territorial division governed by a maire and municipal council and is used to denote any similar division elsewhere.
The characteristic feature of an octroi tax then was that it was on the entry of goods into an area administered by a local body.
Bearing in mind this characteristic of octroi duty we find on an examination of items 7 and 8 of the Schedule Rules mentioned above that under the Government of India Act, 1919, the local legislature of a Province could without the previous sanction of the Governor General impose a 253 tax octroi for entry of goods into an area administered by a local body, that is, a local government authority and the area in respect of which such tax could be imposed was mentioned in item 8 as local area.
It is in the background of this history that we have to examine the use of the word "local area" in item 49 of List II of the Government of India Act, 1935.
Here the word "octroi" has given place to the longer phrase "cesses on the entry of goods into a local area for consumption, use or sale therein.
" It was with the knowledge of the previous history of the legislation that the Constitution makers set about their task in preparing the lists in the seventh schedule.
There can bring title doubt therefore that in using the words "tax on the entry of goods into a local area for consumption, use or sale therein", they wanted to express by the words "local area" primarily area in respect of which an octroi was leviable under item 7 of the schedule tax rules, 1920 that is, the area administered by a local authority such as a municipality, a district Board, a local Board or a Union Board, a Panchayat or some body constituted under the law for the governance of the local affairs of any part of the State.
Whether the entire area of the State, as an area administered by the State Government, was also intended to be included in the phrase "local area", we need not consider in the present case.
The only other part of the Constitution where the word "local area" appears is in article 277.
That Article is in these words: "Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district, or other local area may, notwithstanding that these taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.
" 254 There can be little doubt that "local area" in this Article has been used to indicate an area in respect of which there is an authority administering it.
While the scope of Article 277 is different from the scope of entry 52 so that no direct assistance can be obtained in the interpretation of the words "local area" in entry 52 from this meaning of the words in article 277 it is satisfactory to find that the meaning of "local area" in entry 52 which appears reasonable on a consideration of the legislative history of the matter is also appropriate to this phrase in its only other use in the Constitution.
Reliance was sought to be placed by the respondents on a decision of the Allahabad High Court in Emperor vs Munnalal (1) where the word "local area" as used in section 29 of the U. P. Sugar Factories Control Act, 1938, fell to be considered.
That section, as we have already mentioned, authorised the Governor of U. P. to impose by a notification, after consulting the Sugar Control Board under the Act, a cess on the entry of sugarcane into a local area specified in such notification for consumption, use or sale therein.
The notifications which were issued under this provision set out a number of factories for the levy of a cess at the rate of three annas per maund on entry of all sugarcane into the local area comprised in the factories mentioned in the schedule for consumption, use or sale therein.
Section 29 was clearly within the words of entry 49 of List 11.
The question that arose before the Court was whether the specification of certain factories as local areas was valid law.
The learned Judge appears to have proceeded on the basis that the Governor had notified the area comprised in 74 factories as one "local area" and held that once this was 'done the entire area covered by all these factories should be considered as one statutory local area.
It appears to us that the learned Judge was not right in thinking that the area comprised in 74 factories was notified as one local area.
What appears to have been done was that the area of each factory was being notified as a local area for the purpose of the Act.
Proceeding on (1) I.L.R. 1942 All. 302. 255 the basis that the area comprised in the 74 factories was notified as one local area the learned Judge addressed himself to the question whether this entire area was a local area within the meaning of the Act.
He appears to have accepted the contention that the word local area was used in the sense of an administrative unit, but, says he, the administration need not be political, it may be industrial and educational or it may take any other form of governmental activity.
"I cannot see," the learned Judge observed, "why it is not open to the provincial government or the provincial legislature to make an industrial survey of the province and to divide up the entire province into industrial areas or factory areas or mill areas or in any other kind of areas, and each one of these areas may be notified and be treated as a local area.
And once such areas come into existence and remain in operation they can be regarded as local areas within the meaning of entry No. 49 of List II in which a cess may be levied".
Even if this view were correct it would be of no assistance to the respondents.
It is no authority for the proposition that the area of one single factory is a local area within the meaning of entry 49.
We think however that the view taken by the learned Judge is not correct.
It is true that when words and phrases previously interpreted by the courts are used by the Legislature in a later enactment replacing the previous statute, there is a presumption that the Legislature intended to convey by their use the same meaning which the courts had already given to them.
This presumption can however only be used as an aid to the interpretation of the later Statute and should not be considered to be conclusive.
As Mr. Justice Frankfurter observed in Federal Commissioner vs Columbia B. System (1) when considering this doctrine, the persuasion that lies behind the doctrine is merely one factor in the total effort to give fair meaning to language.
The presumption will be strong where the words of the previous statute have received a settled meaning by a (1) 311 U.S. 131.
256 series of decisions in the different courts of the country; and particularly strong when such interpretation has been made or affirmed by the highest court in the land.
We think it reasonable to say however that the presumption will naturally be much weaker when the interpretation was given in one solitary case and was not tested in appeal.
After giving careful consideration ' to the view taken by the learned Judge of the Allahabad High Court in Emperor vs Munnalal (supra) about the meaning of the words "local area" and proper weight to the rule of interpretation mentioned above, we are of opinion that the Constitution makers did not use the words "local area" in the meaning which the learned Judge attached to it.
We are of opinion that the proper meaning to be attached to the words "local area" in Entry 52 of the Constitution, (when the area is a part of the State imposing the law) is an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like.
The premises of a factory is therefore not a "local area".
It must therefore be held that section 3 of the U. P. Sugarcane Cess Act, 1956, empowering the Governor to impose a cess on the entry of sugarcane into the premises of a factory did not fall within Entry 52 of the State List.
As there is no other Entry in either State List or Concurrent List in which the impugned law could fall there is no escape from the conclusion that this law was beyond the legislative competence of the State Legislature.
The law as enacted in section 3 of the U. P. Sugarcane Cess Act, 1956, must therefore be struck down as invalid.
It may be mentioned that this is not a case where the law is in two parts and one part can be severed from the other and saved as valid while striking down the other portion which is invalid.
Indeed, that was not even suggested by the learned counsel for the respondents.
It is unnecessary for us to consider whether if section 3 had instead of authorising levy of cess for entry of sugarcane into the premises of a factory for use, consumption or sale therein had authorised the imposition of a cess on entry of cane into a local area for 257 consumption, sale or use in a factory that would have been within Entry 52.
It is sufficient to say that we cannot re write the law for the purpose of saving a portion of it.
Nor is it for the Court to offer any suggestion as to how the law should be drafted in order to keep it within the limits of legislative competence.
As the law enacted by the Legislature stands there is no escape from the conclusion that this entire law must be struck down as invalid.
In view of this conclusion on the first ground raised on behalf of the appellant it is unnecessary to consider the other ground raised in the appeal that section 3 has gone beyond the permissible limits of delegated legislation.
As we have held that the impugned legislation was beyond the legislative competence of the State Legislature the appellants are entitled to the relief asked for.
We accordingly allow the appeal, set aside the order passed by the High Court and order the issue of a writ directing that the respondents do forbear from levying and collecting cess from the appellants on account of arrears of cess for the crushing season 1954 55 and in respect of the crushing season 1955 56 and successive crushing seasons under the U. P. Sugarcane Cess Act, 1956.
The appellants will get their costs here and below.
AYYANGAR, J. I have had the privilege of perusing the judgment just now pronounced, but with the utmost respect regret my inability to agree with the order proposed.
The learned Judges of the High Court held that the impugned enactment was within the scope of Entry 52 of the State Legislative List in Schedule 7 to the Constitution, by placing reliance on the following passage in the Judgment of Das, J. in Emperor vs Munna Lal (1) where the learned Judge said: "Indeed I cannot see why it is not open to Provincial Government or Provincial Legislature to make an industrial survey of the Province and to divide up the entire province into industrial areas (1) I.L.R. [1942] All. 302, 328. 33 258 or factory areas or mill areas or in any other kind of areas, and each one of these areas may be notified and be treated as a local area.
And once such areas come into existence and remain in operation they can be regarded as local areas within the meaning of Entry No. 45 of List II in which a cess may be levied.
" In other words, the view which they favoured was to read the expression "local area".
practically to mean any "area" entry into which was by the relevant fiscal statute, made the subject of taxation.
In my opinion that is not a correct interpretation of the entry and agree with my learned brethren that having regard to the historical material, which has been exhaustively set out and discussed in their judgment, the word "local area" can in the entry designate only a predetermined local unit a unit demarcated by statutes pertaining to local self government and placed under the control and administration of a local authority such as a municipality, a cantonment, a district or a local board, an union or a panchayat etc.
and not any region, place or building within the State which might be defined, described or demarcated by the State 's taxing enactment as an area entry into which is made taxable.
But there my agreement stops and we diverge.
In my opinion, this construction of the expression "local area" in entry 52 does not automatically result in the invalidity of the impugned enactment and of the levy under it, but the extent to which, if any the charging section exceeds the power conferred by the entry would depend on matters which have not been the subject of investigation, and it is this point that I shall elaborate in the rest of this judgment.
It is unnecessary for the purposes of this case and possibly even irrelevant, to determine the precise scope, content and incidents of an "octroi" duty except that in the context in which it appeared in the Scheduled Taxes Rules framed tinder the Government of India Act, 1919, the expression signified a tax levied on entry into an area of an unit of local administration.
It is unprofitable to canvass the question 259 whether a local authority empowered at that date to levy an 'octroi ' might or might not lawfully confine the levy to entry for consumption alone, to use alone or for sale alone.
But when that entry was refashioned and enacted as item 49 of the Provincial Legislative List under the Government of India Act, 1935 (in terms practically identical with Entry 52 in the State Legislative List under the Constitution), the matter was no longer left in doubt.
The new item ran: "Cesses on the entry of goods into a local area for consumption, use or sale therein".
In connection with the use of the words "for consumption, use or sale therein" in the item three matters deserve notice: (1) Where the entry into the "local area" was not for one of the purposes set out in it, viz., for consumption, use or sale therein, but the entry was, for instance in the course of transit or for warehousing during transit, the power was not available; in other words, a mere entry could not per se be made a taxable event.
(2) It was sufficient if the entry was for any one of the three purposes; the use of the disjunctive 'or ' making this clear.
(3) The passage of goods from one portion of a local area to another portion in the same local area, would not enable a tax to be levied, but the entry has to be "into the local area", i.e., from outside the local area.
It is the second and the third of the above features that call for a more detailed examination in the context of the points requiring decision in the present case.
With this background I shall analyse the terms of section 3(1) of the Act (United Provinces Act XXII of 1956) to ascertain where precisely the provision departs from the scope or content of entry 52.
I will read that section which runs: "3.
The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory for use, consumption or sale therein: Provided that the State Government may likewise remit in whole or in part such cess in respect 260 of cane used or to be used in factory for any limited purpose specified in the notification.
Explanation: If the State Government, in the case of any factory situate outside Uttar Pradesh, so declare, any place in Uttar Pradesh set apart for the purchase of cane intended or required for use, consumption or sale in such factory shall be deemed to be the premises of the factory.
" Leaving the Explanation for the present, there are two matters which require advertence: (1) The first was the point emphasised by Mr. Sanyal for the appellant, that entry into the premises of a factory "for the purpose of consumption, use or sale therein" is fastened on as the taxable event treating the factory premises as if that were itself a "local area".
(2) Apart from entry into factory premises for use, consumption or sale therein, entry of the cane into other places within the local area, i.e., into "unit for local administration" is not made the subject of tax levy.
The second of the above matters cannot invalidate the legislation, because a power to tax is merely enabling, and apart from any question of discrimination under article 14 which does not arise for consideration before us the State is not bound to tax every entry of goods into "a local area".
Again, the tax could undoubtedly be confined to entry of goods into a "local area" for consumption or use in particular modes; in other words, there could be no legal objection to the tax levy on the ground that it does not extend to entry of goods into "a local area" for every type of consumption or use.
In my judgment the real vice of the charging section 3(1) lies not in that it Confines the levy to cases where the entry is for purposes of consumption etc.
in a factory but 'in equating the premises of a factory with "a local area" entry of goods into which, occasions the tax.
Another way of expressing this same idea would be to say that whereas under Entry 52 the movement of goods from within the same local.
area in which the factory is situated into the premises of the factory, could not be the subject of tax liability, because there 261 would in such cases be no entry of the goods "into a local area" under section 3(1) of the Act, not merely is the movement of goods into the factory from outside the 'local area ' in which the factory is situate made the subject of tax, but the words used are capable of imposing the tax even in those cases where the entry into the factory is from within the same local area.
What I have in mind may be thus illustrated: If factory A situated in Panchayat area B gets its supply of cane from outside the Panchayat area, the levy of the tax on the entry of the cane into the Panchayat area would clearly be covered by entry 52.
The State is not bound to tax every entry of the cane into the area but might confine the levy to the entry of the cane for the purpose of consumption in a factory.
The tax might be levied and collected at the border of the Panchayat area but there is no legal obligation to do so, and the place at which the entry of the goods is checked and the duty realised is a matter of administrative machinery which does not touch on the validity of the tax imposition.
It would thus not detract from the validity of the tax if by reason of convenience for effecting collection, the tax was levied at the stage of entry into the premises of a factory.
So long, therefore, as the cane which enters a factory for the purpose of consumption therein comes from outside that local unit of administration in which the factory is situated, in my opinion it would be covered by the words of entry 52 and well within the legislative competence of the State Government.
The language of section 3, as it stands appears, however, also to extend to cases where the supply of cane to a factory is from within the same local unit of administration; in other words, where there is no entry of the cane into the local area as explained earlier.
If this were the true position, the enactment cannot be invalidated as a whole.
It would be valid to the extent to which the tax is levied on cane entering a factory for the purpose of consumption etc.
therein from outside the local area, within which the factory premises are situated, and only invalid where it out steps this limitation.
262 The next question is whether this is a case where the valid and invalid portions are so inextricably interwoven as to leave the Court no option but to strike down the entire enactment as invalid as beyond the legislative competence of the State, or whether the charging provision could be so read down as to leave the valid portion to operate.
In my opinion, what is involved in the case before us is not any problem of severance, but only of reading down.
Before taking up this question for discussion two objections to the latter course have to be considered.
The first is that this aspect of the matter was not argued before us by learned Counsel for the State as a ground for sustaining the validity of the legislation.
In my judgment this is not an objection that should stand in the way of the Court giving effect to a view of the law if that should appear to be the correct one.
In making this observation one has necessarily to take into account the fact that legislation in nearly this form, has been in force in the State for over twenty years, and though its vires was once questioned in 1942, that challenge was repelled and the tax levy was held valid and was being collected during all this period.
The sugar cane cess has been a prime source of State Revenue for this length of time and this Court should not pronounce such a legislation invalid unless it could not be sustained on any reasonable ground and to any extent.
The second ground of objection which has appealed to my learned brethren but with which, I regret, I cannot concur is that it would require a rewriting of the Act to sustain it.
Now if the first paragraph of sub section
(1) of section 3 bad read: "The State Government may by notification in the official gazette impose a cess not exceeding four annas per maund on the entry of the cane into the premises of a factory (from outside the local area in which the factory premises were situate) for use, consumption or sale therein:" (The words in brackets added by me) 263 the levy would be entirely within entry 52 even according to my learned brethren.
The question is whether the implication of these words would be a rewriting of the provision or whether it would be merely reading the existing provision so as to confine it to the powers conferred upon the State Legislature by the relevant legislative entry.
In view of the strong opinion entertained by my learned brethren, I have given the matter the utmost consideration, but I feel that the words which I have suggested are a permissible mode of construction of a statute by which wide words of an enactment which would cover an event, contingency or matter within legislative power as well as matters not within it, are read as confined to those which the law making only had authority to enact.
In my judgment the opinion of the Federal Court in In re Hindu Women 's Rights to Property Act, 1937 (1), affords a useful analogy to the present case.
The enactment there impugned provided for the devolution or succession to "property" in general terms which would have included both agricultural as well as nonagricultural property, whereas the Central Legislature which enacted the law had no power to deal with succession to agricultural property.
The contention urged before the Court was that by the use of the expression "property", the legislature had evinced an intention to deal with property of every type and that it would be rewriting the enactment and not carrying out the legislative intent if the reference to "property" in the statute were read as "property other than agricultural property".
Dealing with this contention, Sir Maurice Gwyer, delivering the opinion of the Court said: "No doubt if the Act does affect agricultural land in the Governors 'Provinces, it was beyond the competence of the Legislature to enact it: and whether or not it does so must depend upon the meaning which is to be given to the word "property" in the Act.
If that word necessarily and inevitably comprises all forms of property, including agricultural land, then clearly the Act went beyond the powers (1) 264 of the Legislature; but when a Legislature with limited and restricted powers makes use of a word of such wide and general import, the presumption must surely be that it is using it with reference 'to that kind of property with respect to which it is competent to legislate and to no other.
The question is thus one of construction, and unless the Act is to be regarded as wholly meaningless and ineffec tive, the Court is bound to construe the word "property" as referring only to those forms of property with respect to which the Legislature which enacted the Act was competent to legislate; that is to say, property other than agricultural land. . .
The Court does not seek to divide the Act into two parts, viz., the part which the Legislature was competent, and the part it was incompetent, to enact.
It holds that, on the true construction of the Act and especially of the word "property" as used in it, no part of the Act was beyond the Legislature 's powers.
" The Court accordingly held that the Hindu Women 's Rights to Property Act, 1937, applied to non agricultural property and so was valid.
In this connection it might be interesting to refer to the decision in Blackwood vs Queen (1) which Sir Maurice Gwyer, C.J., referred to with approval.
That case related to the validity of a duty imposed by the Legislature of Victoria (Australia) on the personal estates of deceased person.
The learned Chief Justice observed "The Judicial Committee construed the expression "personal estate" occurring in the statute to refer only to: "such personal estate as the colonial grant of probate conferred jurisdiction on the personal representatives to administer, whatever the domicile of the testator might be, that is to say, personal estate situate within the Colony, in respect of which alone the Supreme Court of Victoria had power to grant probate: Their Lordships thought that "in imposing a duty of this nature the Victorian Legislature also was contemplating the property which was under its own hand, and did not intend to levy a tax in respect of property (1) 265 beyond its jurisdiction".
And they held that "the general expressions which import the contrary ought to receive the qualification for which the appellant contends, and that the statement of personal property to be made by the executor under section 7(2) of the Act should be confined to that property which the probate enables him to administer" (1).
To confine the tax to the limitations subject to which it could, under the Constitution, be levied is, in my opinion, not an improper method of construing the statute.
The manner in which the word "property" was read down by the Federal Court in In re Hindu Women 's Rights to Property Act, 1937 (1) and the word "personal property" construed by the Privy Council in Blackwood vs Queen (2) make in my opinion less change in the text of the impugned provision than the addition of the words I have set out above, which after all are words implicit in the power conferred on the State Legislature.
I would, therefore, hold that the charging section would be invalid and beyond the legislative competence of the State of Uttar Pradesh only in so far as it seeks to levy a tax on cane entering a factory from within the same local area in which the factory is situate and that in all other cases the tax is properly levied; and that the impugned section could and ought to be so read down.
The matter not having been considered from this aspect at earlier stages, we have necessarily no material before us for adjudicating upon whether tax levied or demanded from the appellant is due and if so to what extent.
We have nothing before us to indicate as to how far the cane, the entry of which into the factory of the appellant is the subject of the impugned levy, has moved into the factory from outside the local unit in which the factory is situated or originated from within the same local area.
I consider that without these matters being investigated it would not be possible to adjudicate upon the validity of the tax demanded from the appellants.
There is one matter to which it is necessary to (1) Per Sir Maurice Gwyer, C. J. , 23, (2) 34 266 advert which I have reserved for later consideration, viz., the validity of the Explanation to section 3(1)of the Act.
It would be apparent that the Explanation was necessitated by the terms of sub section
(1) of section 3 which equated "factory premises" with "local areas", or rather rendering factory premises the sole local areas entry into which occasioned the tax.
So far as the purchasing centres which are dealt with in the Explanation are concerned, the cane that moves into them from outside the "local area" where these centres are would clearly be covered by Entry 52, since the purpose of the movement into the centre is on the terms of the provision for effecting a sale therein.
In other words, the same tests which I have discussed earlier in relation to entry into factory premises, would apply mutates mutandis to these purchasing centres and in so far as a tax is levied on the movement of the cane from outside the local area the levy would be legal and in order.
I would read down the Explanation in the same manner, as I have read down the main charging provision so as to confine the levy to entry from outside 'that "local area" local area being understood in the sense already explained.
I would accordingly allow the appeal, and remand it to the High Court for investigating the material facts which I have mentioned earlier with a direction to pass judgment in accordance with the law as above explained.
BY COURT.
In accordance with the opinion of the majority the appeal is allowed, the order passed by the High Court is set aside and a writ be issued directing that the respondents do forbear from levying and collecting cess from the appellants on account of arrears of cess for the crushing season 1954 55 and successive crushing seasons under the Uttar Pradesh Sugarcane Cess Act, 1956.
The appellants will get their costs here and below.
Appeal allowed.

Output:
Entry 52 of List II of the Seventh Schedule to the Consti tution empowered State Legislatures to make a law relating to "taxes on the entry of goods into a local area for consumption, use or sale therein".
The U. P. Legislature passed the U. P. Sugarcane Cess Act, 1956, which authorised the State Government to impose a cess on the entry of cane into the premises of a factory for use, consumption or sale therein.
The appellant contended that the premises of a factory was not a 'local area ' within the meaning of Entry 52 and the Act was beyond the competence of the legislature.
243 Held, (per Imam, Kapur, Das Gupta and Raghubar Dayal, jj.) that the impugned Act was beyond the competence of the legislature and was invalid.
The premises of a factory was not a "local area" within the meaning of Entry 52.
The proper meaning to be attached to the words "local area" in Entry 52 was an area administered by a local body like a municipality, a district board, a local board, a union board, a Panchayat or the like.
In re: the Central Provinces & Beray Act No. XIV of 1938, , Navinchandra Mafatlal vs The Commissioner of Income tax, Bombay City, [1955] 1 S.C.R. 829, State of Madras vs Gannon Dunkerley & Co., Ltd., ; and South Carolina vs United States, , referred to.
Emperor vs Munnalal, I.L.R. 1942 All. 302, disapproved.
Per Ayyangar, J.
The Act was invalid only in so far as it sought to levy a tax on cane entering a factory from within the same local area in which the factory was situate and was valid in other cases.
It was permissible to read the Act so as to confine the tax to the limitations subject to which it could be constitutionally levied and to strike down that portion which out stepped the limitations.
In re Hindu Women 's Rights to Property Act, 1937, and Blackwood vs Queen, , applied.


Input:
Civil Appeal No. 3011 of 1979.
From the Judgment and Order dated the 7th September, 1979 of the Patna High Court in Election Petition No. 4 of 1977.
Shanti Bhushan and M.P. Jha for the Appellant.
S.K. Sinha for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN, J.
This election appeal is directed against the judgment of the Patna High Court dismissing Election Petition No. 4 of 1977 with costs of Rs. 1000/ .
The appellant Dharmesh Prasad Verma, who is stated to have contested the election as a Janata candidate, had pleaded four items of corrupt practice in his election petition filed against the respondent Faiyazal Azam who is stated to have contested the election as a Congress I candidate.
The poll in this case was held on 12.6.1977 for the election of a member of the Bihar Legislative Assembly from No. 5 Sikta Constituency in West Champaran district.
The appellant secured 1795 votes while the respondent secured 28324 votes and was declared elected on 15.6.1977.
The election petition was filed on 18.7.1977.
The Legislative Assembly was dissolved in 1980 and fresh election had been held in that year and the respondent is stated to have contested as a non Congress I candidate and to have been elected from the same constituency.
The appellant is, however, interested in pursuing this election petition relating to the election of the year 1977 in order to prove corrupt practice on the part of the respondent.
Mr. Shanti Bhushan, Senior Counsel, appearing for the appellant, restricted his arguments to the first charge alone and that too regarding the use of the jeep USJ 5226 which is alleged to have belonged to one Kabir Ahmed.
That charge is that respondent committed the corrupt practice falling under section 123(5) of the Representation of the People Act, 1951 (hereinafter 14 referred to as the "Act") by procuring and using the jeep for the free conveyance of voters to the polling station on the date of poll.
The respondent denied the charge in his written statement and contended that the appellant had not complied with the mandatory provisions of sections 81, 82 and 83 read with order VI, Rule 15 of the Code of Civil Procedure and section 117 of the Act and that the election petition is, therefore, liable to be dismissed.
The learned Single Judge who tried the election petition, after observing that it is common knowledge that every politician realises the importance of vehicles during general elections, noticed this Court 's observations in Rahim Khan vs Khurseed Ahmed that proceedings arising out of election petitions are quasi criminal in nature and that the evidence relating to corrupt practices should be scrutinized with scrupulous care and merciless severity, and then proceeded to consider the evidence adduced by the parties.
On the evidence the learned Judge found that the jeep bearing No. USJ 5226 while carrying five ladies was seized by the District Magistrate and the Superintendent of Police of the district from a road near a canal situate about 1.5 or 2 miles away from the Sarkiatola booth on the date of the poll and that the five ladies including Murati @ Deokalia (P.W. 19), Mehrunnissa (P.W. 11) and Rasulia (P.W. 42) were voters who were being carried free of cost for casting votes on behalf of the respondent.
The learned Judge found that at the time of the seizure of the jeep it was driven by Kabir Ahmed 's nephew Tabrez Ahmed and that Kabir Ahmed was a great friend of the respondent and he and his father worked for the respondent in the election and were present in the booth on the date of the poll and that the respondent 's polling agent Manager Prasad stood surety for the release of the jeep.
However, the learned Judge held that these facts are not sufficient by themselves to hold that the respondent himself procured the jeep from Kabir Ahmed.
The learned Judge further found that since the jeep with the voters was caught not at the polling station but at some distance away from it, in any event, it was only a case of an attempt at corrupt practice and not corrupt practice itself as per section 123(5) of the Act.
Thus the learned Judge rejected the appellant 's case in regard to this instance of corrupt practice as also the other instances and dismissed the election petition.
15 Section 123(5) of the Act read thus: "section 123.
The following shall be deemed to be corrupt practice for the purpose of this Act: (1) . . . . (2) . . . . (3) . . . . (4) . . . . (5) The hiring or procuring, whether on payment or other wise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector other than the candidate himself, the members of his family or his agent, to or from any polling station provided under section 25 or a place fixed under sub section(1) of section 29 for the poll: Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power: Provided further that the use of any public transport vehicle or vessel or any tram car or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation: In this clause, the expression 'vehicle ' means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise." 16 In clauses (5) of section 123 the word "or" is used in several places and the word "and" is used in two places in the first proviso and the explanation.
Prima facie, Parliament must be deemed to have used the word "or" and "and" for different purposes or objects.
If the matter is res integra it could be said that the main clause (5) consists of two separate parts, namely (1) the hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person, with the consent of a candidate or his election agent for the free conveyance of any elector to or from any polling station, or (2) the use of any vehicle or vessel by any candidate or his agent or by any other person with the consent of a candidate or his election agent for the purpose of free conveyance of any elector to or from any polling station.
It is true that in the latter part of clause (5) the word "such" issued before the words "vehicle or vessel for the free conveyance of any elector to or from any polling station".
But the matter is no longer res integra.
In Joshibhai Chunibhai Patel vs Anwar Beg Mirza Hidayattullah, C.J. speaking for himself and G.K. Mitter, J. has observed: "This brings us to the examination of section 123(5) with a view to finding out what are its requirements.
We have already indicated that in our opinion the election petitioner must prove in addition to the other ingredients of the section that the vehicle was used for free conveyance of voters which ingredient we have stated was not attempted to be established in the case. . .
This section defined one of the corrupt practices and it consists of hiring and procuring whether on payment or otherwise of any vehicle.
This hiring and procuring must be by any other person with the consent of the candidate or his election agent and the hiring according to the section must be for the free conveyance of any elector other than the candidate himself or members of his family or his agent to and from any polling station.
It will, therefore, appear that the section requires three things, (1) hiring or procuring of a vehicle; (2) by a candidate or his agent etc.
and (3) for the free conveyance of an elector.
It will be noticed that the section also speaks of the use but it speaks of the use of such vehicle which 17 connects the two parts, namely, hiring or procuring of vehicle and the use.
The requirement of the law therefore is that in addition to proving the hiring or procuring and the carriage of electors to and from any polling station, it should also be proved that the electors used the vehicle free of cost to themselves.
" In Razik Ram vs Jaswant Singh Chouhan, Sarkaria, J. speaking for himself and Alagiriswami, J. has observed: "On analysis, clause (5) of Section 123 falls into two parts.
The requirements of the first part are; (i) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel for the free conveyance of voters (ii) Such hiring or procuring must be by a candidate or his election agent or by any other person with the consent of a candidate or of his election agent.
The second part envisages the "use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family, or his election agent) to or from any polling station".
The two parts are connected by the conjunction "or" which is capable of two constructions.
In one sense, it is a particle coordinating the two parts of the clause and creating an alternative between them.
In the other sense which is akin to the sense of "and" it can be construed as conjoining and combining the first part of the clause with the second.
The latter construction appears to comport better with the aim and object of the amendment of 1966.
In this connection, it is not worthy that even before the amendment, this Court in Balwan Singh vs Lakshmi Narain ; , held that in considering whether a corrupt practice described in Section 123(5) is committed conveying of electors cannot be dissociated from the hiring of a vehicle.
Even if the word "or" is understood as a coordinating conjunction introducing alternatives then also a petitioner in order to succeed on the ground of a corrupt 18 practice under the second part of the clause, must prove, in addition to the use of the vehicle or vessel for the free conveyance of any elector to or from any polling station, the hiring or procuring of that vehicle or vessel.
This is so because the word "such" in the phrase introduced by the 1966 amendment, expressly imports these elements of the first into the second part of the clause.
In the view we take we are fortified by the dictum of this Court in Joshibhai Patel vs Anwar Beg Mirza ; , wherein Hidayatullah, C.J., speaking for the Court analysed the requirements of the clause, thus: It will be noticed that this section also speaks of the use of such vehicle which connects the two parts, namely, hiring or procuring of vehicle and its use.
The requirement of the law therefore is that in addition to proving the hiring or procuring and the carriage of electors to and from any polling station, it should also be proved that the electors used the vehicle free of cost to themselves.
" In Dadasahib Dattatraya Pawar vs Pandurang Raoji, Jagtap, Jaswant Singh, J. speaking for the Court has observed: In regard to section 123(5) of the Representation of People Act, 1951 which before its amendment by Act 47 of 1966 was identical in terms with section 144 1(3) of the Act, it was held by this Court in Shri Balwant Singh vs Shri Lakshmi Narain that in considering whether a corrupt practice described in section 123(5) is committed conveying of electors cannot be dissociated from the hiring of a vehicle.
It has also been held by this Court in Ch.
Razik Ram vs J.S. Chouhan and Ors.
that 19 to establish the corrupt practice under section 123(5) of the Representation of the People Act, 1951, it is necessary for an election petitioner to prove (i) that any vehicle or vessel was hired or was procured, whether on payment or otherwise by the returned candidate or by his election agent or by any other person with the consent of the candidate or of his election agent; (ii) that it was used for conveyance of the electors to or from any polling station and (iii) that such conveyance was free of cost to the electors.
Failure to substantiate any one of these ingredients leads to the collapse of the whole charge.
" We shall now proceed to consider the evidence adduced by the parties alleged by the appellant.
On the day of poll, 12.6.1977 J.K. Dutta, P.W. 69, the then District Magistrate, West Champaran was proceeding to Sikta in a jeep accompanied by the Superintendent of Police in the course of his duties in relation to the election.
Finding a jeep carrying some ladies, P.W. 69 instructed the Superintendent of Police to make the necessary enquiry.
After the necessary enquiry was made by the police the jeep with the occupants and the driver was taken to the police station by the Station House Officer, Sikta Police Station, who found the jeep having been detained by the District Magistrate and the Superintendent of Police on the road near a canal situate about 1.5 or 2 miles away from the Sarakiatola booth when he was proceeding towards Parsa village with some policemen.
Subsequently, the ladies who were in the jeep were taken from the police station by a government jeep to the place from where the private jeep with the occupants and the driver was taken by the officials to the Sikta Police Station.
Anil Kumar, P.W. 73.
the then Superintendent of Police, Bettiah who accompanied P.W. 69, has given a little more detailed evidence regarding what happened when he was accompanying P.W. 69 to Sikta.
He has deposed that since they suspected that the four or five rustic ladies who were being carried by the jeep could not be its owners, he seized the jeep, evidently under the impression that the ladies were being carried free of charge to the booth, near a canal situate about 1.5 or 2 miles from the booth and took it alongwith the driver and its occupants to the police station.
After the statements of the ladies and the driver were recorded by the Station House Officer at the Sikta Police Station, they were taken back 20 by a government jeep to the place from which the private jeep in which they were travelling earlier was seized so that they could go and cast their votes.
P.Ws. 69 and 73 do not remember the number of the jeep and P.W. 69 does not know to whom the jeep belonged.
Amal Ranjan Sarkar, P.W. 81, is the Station House Officer who took the jeep with its occupants and the driver to the police station after he found the jeep having been detained by P.Ws. 69 and 73.
Kabir Ahmad 's nephew Tabrez Ahmad was driving the jeep.
P.W. 81 obtained the statement, exhibit 13, written and signed by Tabrez Ahmad as also the statements of five ladies who were found travelling in the jeep.
The jeep USJ 5226 which was taken into custody was later released to Kabir Ahmad on 17.6.1977 under exhibit (c) after one Managar Prasad, who is proved to have been the polling agent of the respondent, furnished security under exhibit 14 (b).
There is evidence of Sheikh Ejazul, P.W. 8 that the jeep USJ 5226 which was used in the election belonged to Kabir Ahmad and that it was driven by Tabrez Ahmad.
There is evidence to show that Kabir Ahmad 's brother Nazir Ahmad was another polling agent to the respondent like Managar Prasad.
The learned Trial Judge has found that Managar Parasad was the respondent 's polling agent.
This fact, to which our attention was drawn by Mr. Shanti Bhushan was not disputed by the respondent 's learned counsel.
The respondent, R.W. 45 has admitted that Kabir Ahmad 's brother Nazir Ahmad was his polling agent and that Tabrez Ahmad is the nephew of Kabir Ahmad and Nazir Ahmad.
But he has stated that the does not know if Managar Prasad whom he knows was his polling agent or whether he had furnished security for the release of the jeep by the Police to Kabir Ahmad.
D.N. Pandey, P.W. 75 the then Anchal Adhikari of Sikta who had been deputed to work as the Sub Zonal officer during the election in 1977 has also deposed about the seizure of Kabir Ahmad 's jeep driven by Tabrez Ahmad.
He was present at the Sikta Police Station when the jeep with some women sitting in it was brought to the police station.
He has stated that Kabir Ahmad, who was very friendly with respondent, came to the police station to get the women and the jeep released from the custody of the police.
The evidence of Muratiwa @ Deokha, P.W. 10, Mehrunoissa, P.W. 11 and Rasulia, P.W. 42 who travelled in the jeep alongwith two other ladies including Queresha P.W. 67 21 is that Kabir Ahmad got them released from the police station on the day of the poll after they and the two other ladies who were travelling with them by the jeep had been taken to the police station.
The aforesaid evidence of P.Ws. 69, 73, 81, 75, 10, 11 and 42 which has not been seriously challenged in the cross examination establishes satisfactorily that the jeep USJ 5226 belonging to Kabir Ahmad was seen being driven by Kabir Ahmad 's nephew Tabraz Ahmad with five women electors including P.Ws. 10, 11, 42 and 67 on the road near a canal situate about 1 or two miles away from the Sarakiatola booth on the day of the poll, that the jeep with the ladies and the driver was seized on suspicion that it was being used for carrying electors to the booth free of cost, that the statements of the five ladies and the driver Tabrez Ahmad were recorded at the Sikta Police Station by the Station House officer, P.W. 81, in the presence of P.Ws. 69, 73 and 75, that Kabir Ahmad got the ladies released from police custody on the same day and they were thereafter brought by a government jeep from the police station to the place from where they had been previously taken to the police station in Kabir Ahmad 's jeep, that the jeep was released to Kabir Ahmad on 17.6.1977 under exhibit 14(c) and that the respondent 's polling agent Manager Prasad furnished security under exhibit 14(b) for the release of the jeep to Kabir Ahmad.
The appellant 's contention is that the respondent procured the jeep USJ 5226 from Kabir Ahmad and it was used for the conveyance of electors free of cost to themselves for the purpose of casting votes in favour of the respondent and that the respondent is thus guilty of corrupt practice under section 123(5) of the Act.
The evidence referred to above establishes the requirement of clause (5) of s 123 that the vehicle USJ 5226 which is proved to belong to the respondents close friend Kabir Ahmad was used for the conveyance of electors who were proceeding to cast votes in favour of the respondent on the day of the poll.
It is not possible to agree with the learned Trial Judge that what this evidence establishes is only an attempt to convey electors to the polling booth and not actual conveyance of the electors merely because the jeep with the electors who were being carried in it was intercepted at a distance of 1 or 2 miles away from the booth and taken to the police station by the official who had suspected that an election 22 offence had been committed.
The jeep was seized when it was being used for carrying electors who were proceeding to vote for the respondent, no doubt at a distance of 1 or 2 miles away from the polling booth.
Even the learned counsel for the respondent did not contend before us that what has.
been established is only an attempt at conveying electors by the jeep of Kabir Ahmad to the polling booth and not actual conveyance.
There is overwhelming evidence on record including that of the Anchal Adhikari, P.W. 75 who had worked as the Secretary of a Cement Committee of which the respondent was the President, to show that the respondent is a good friend of Kabir Ahmad, whose brother Nazir Ahmad was admittedly the respondent 's polling agent.
The respondent had used to him for the purchase of a motor cycle for the benefit of Nazir Ahmad who admittedly advanced the money required for its purchase and was using the vehicle which stood nominally registered in the name of the respondent.
The respondent has professed ignorance in his evidence whether Kabir Ahmad owned the jeep USJ 5226 at all and he has denied that the jeep was used for carrying electors for casting votes in his favour on the day of poll.
A reading of the evidence of R.W. 45 shows that his evidence is totally unreliable.
We may state at this stage that the respondent 's learned counsel Mr. S.K. Sinha found it practically impossible to deny any aspect of the appellant 's case in regard to this item of corrupt practice except the part relating to the procurement of the jeep USJ 5226 by the respondent from its owner Kabir Ahmad.
We find that this part of the appellants case relating to this item of corrupt practice is clearly established by the evidence referred to above.
The next point for consideration is whether the electors were carried free of cost to themselves by the jeep USJ 5226 on the day of poll.
On this aspect of the appellants case there is direct evidence of the electors P.Ws. 10, 11 and 42 besides that of some other evidence.
The appellant 's polling agent Jang Bahadur Mian, P.W.6, has stated in his evidence that the jeep 23 USJ 5226 was being used for carrying electors to cast votes in favour of the respondent, that the respondent met the expenses of electors and that the jeep was seized by the District Magistrate and the police on the day of poll.
He has denied the suggestion that the jeep USJ 5226 was not used for carrying electors at all.
In view of the other evidence referred to above we are of the opinion that there is no substance at all in this suggestion made P.W. 9 who was an elector from Parsa village in the election held in 1977 has stated in his evidence that electors were carried by Kabir Ahmad 's jeep on behalf of the respondent.
The suggestion made to him and denied by him is that he has given false evidence.
The electors P.Ws. 10, 11 and 42 belong to same Parsa Village.
P.W. 10 has stated that Kabir Ahmad has asked her to vote for the candidate whose symbol consisted of cow and calf, i.e. the respondent, that she and four other women electors were being carried in Kabir Ahmad 's jeep driven by Kabir Ahmad 's nephew when the jeep was seized and taken to the police station and that they did not pay anything to the owner or the driver of the jeep for their conveyance.
To the same effect is the evidence of P.Ws. 11 and 42 who also have stated clearly in their evidence that they did not pay anything for their conveyance to the owner or the owner or the driver of the jeep and that they and the other women were carried in the jeep free of cost to themselves.
What has been elicited from P.W. 10 in the cross examination is that she does not know the names of the other ladies who travelled with her in the jeep.
P.W. 11 has denied the suggestion that she has been tutored to give false evidence.
P.W. 42 has denied the suggestion that she was not an elector at all and that she has given false evidence.
P.W. 10 is a Hindu while PWs.
11, 42 and 67 are Muslims.
Yaqub Mian, PW 43, the husband of P.W. 42 also has stated in his evidence that the electors were carried by the jeep free of cost and that after learning that the jeep had been taken to the police station he went to the police station and found that Kabir Ahmad had already obtained the release of the electors from the police.
He too has denied the suggestion that he has been tutored to give false evidence and that he had worked for the appellant in that election.
We are of the opinion that there is no reason for disbelieving the evidence of P.Ws. 10, 11, 42 and 43 that the electors who travelled by the jeep which was intercepted by the officials and taken to the police 24 station were being carried to the polling booth free of cost to themselves for casting their votes in favour of the respondent.
This part of the appellant 's case is clearly proved by the evidence of these four witnesses.
We may state that the respondent 's learned counsel has not disputed that the evidence of these four witnesses proves that the electors were being carried to the booth by the jeep USJ 5226 for casting their votes in favour of the respondent free of cost to themselves.
We find that the evidence referred to above proves the second requirement of clause (5) of section 123 of the Act.
The third point which alone is seriously disputed by the learned counsel for the respondent is the question of procuring Kabir Ahmed 's jeep USJ 5226 by the respondent for carrying electors to vote for him.
Since it has been found that the jeep USJ 5226 belonging to the respondent 's close friend Kabir Ahmed was actually used for the conveyance of voters who were proceeding to cast votes in favour of the respondent free of cost to themselves, the jeep could have been put in use for the purpose either by Kabir Ahmed himself or some other person without reference to the respondent or his agent or it could have been procured by the respondent.
It could not have become available for carrying electors who were proceeding to vote for the respondent in any other manner.
It is not the respondent 's case that Kabir Ahmed or any other person put the jeep to use for carrying electors to vote for him free of cost to themselves without any reference whatsoever to him.
The details relating to the jeep USJ 5226 had been given in the election petition.
The respondent could have made necessary enquiries from Kabir Ahmed, the owner of the jeep and pleaded that the jeep was used for carrying electors for his benefit without any reference to him voluntarily by its owner Kabir Ahmed or by any other person if that were so.
The respondent has not come forward with any such plea.
Therefore, it is not possible to accept the submission of the respondent 's learned counsel Mr. S.K. Sinha that in view of the fact that it is the appellant 's case that Kabir Ahmed is a very close friend of the respondent, Kabir Ahmed himself could have put his jeep to use for carrying electors for the benefit of the respondent without any request for the use or the jeep on the part of 25 the respondent.
Therefore, the only other possibility is that the respondent or someone else acting as his agent had procured the jeep from Kabir Ahmed for the purpose of using it for the benefit of the respondent in connection with the election, namely, to carry electors for voting in his favour free of cost to themselves.
Having regard to this probability we are of the opinion that even slight evidence in this regard would be sufficient for proving this aspect of the appellant 's case.
Regarding this aspect of the appellant 's, case on the side of the respondent there is the interested evidence of the respondent alone and he has stated that he had not asked for any jeep or any other help from Kabir Ahmed in connection with the election held in 1977 and that Kabir Ahmed did not help him in any way in that election.
The evidence of the respondent is absolutely unreliable as stated earlier having regard to the fact that it is clearly established by the evidence that the jeep USJ 5226 belonging to Kabir Ahmed was actually used for carrying electors who were proceeding to vote in favour of the respondent free of cost to themselves and that it was seized by the officials when it was being driven by Kabir Ahmed 's nephew Tabrez Ahmed, white the electors seated in the jeep.
The evidence on record clearly proves and it is not challenged by the respondent 's learned counsel but is on the other hand conceded by him that Kabir Ahmed had helped the respondent by allowing his jeep USJ 5226 driven by his own nephew Tabrez Ahmed for the free conveyance of electors who were proceeding to the booth for voting in favour of the respondent.
The appellant 's polling agent P.W. 6 has stated in his evidence that the respondent had borrowed Kabir Ahmed 's jeep for the conveyance of electors from their respective places to the booth had for their return to their places from the booth.
He has also stated that one of the two jeeps used for carrying electors to vote for the respondent is USJ 5226.
He has denied the suggestion that the jeep USJ 5226 was not used at all for carrying electors on the day of poll.
Sahib Mian, P.W. 16 is a muslim barber belonging to Haripur, which is also known as Sikta.
He was an elector who had cast his vote in the election held in 1977.
He knows the respondent as well as Kabir Ahmed who 26 owns a jeep and a mill at Parsa.
He has deposed that when he was given a share to Kabir Ahmed at his mill in Parsa, three persons including the respondent went there and that the respondent asked, Kabir Ahmed agreed to give it to him.
He has denied the suggestion that he has given false evidence.
P.W. 43 has stated in his evidence that the respondent and Kabir Ahmed went to his village on day prior to the day of the poll and asked him to vote for the respondent and told him that a jeep had been borrowed from Kabir Ahmed to carry voters and that accordingly a jeep driven by Tabrej Ahmed came on the next day and carried female electors.
No doubt, P.W. 43 and his wife P.W. 42 are casual laborers P.W. 43 has denied the suggestion that he had worked for the appellant in that election and that he has been tutored to give false evidence.
There is no satisfactory reason for disbelieving the evidence of these three witnesses P.Ws. 6, 16 and 43 of whom P.W. 6 was no doubt the appellant 's polling agent.
It is not possible to reject the evidence of P.W. 6 merely because he was admittedly the appellant 's polling agent, especially having regard to the fact that his evidence is in a way corroborated by the evidence of P.Ws. 16 and 43.
The respondent R.W. 43 has admitted in his evidence that Kabir Ahmed and others own a mill and that Kabir Ahmed is a partner in that mill business.
As stated earlier, he has admitted that Kabir Ahmed 's brother Nazir Ahmed was his polling agent and that Tabrez Ahmed is the nephew of Kabir Ahmed and Nazir Ahmed.
The evidence of P.W. 75 shows that Tabrej Ahmed did not even hold driving licence when the was found to be driving the jeep USJ 5226 carrying electors to the booth on the day of poll and that he was prosecuted separately for that offence under the Motors Vehicles Act.
There is evidence of Daroga Mahato, P.W. 56, to show that the respondent and Kabir Ahmed were good friends and that Kabir Ahmad 's father Sharif Ahmad was sitting about 100 yards away from the booth on the day of poll.
The learned Trial Judge has found that Kabir Ahmad is a good friend of the respondent and that he and his father had worked for the respondent in the election held in 1977.
Inspite of all these facts the respondent has not called Kabir Ahmad as his witness to deny that he had procured the jeep USJ 5116 from Kabir Ahmed for the conveyance of his electors.
He has not examined even Tabrez Ahmad though he had been admittedly named as one of his witnesses in 27 the list of witnesses submitted on his behalf.
He would say that to the best of his knowledge Kabir Ahmad did not possess any jeep and that he submitted the list of witnesses by merely looking into the voters list without applying his mind because he was pressurized by his lawyer to file a tentative list of witnesses as soon as possible and was informed by his lawyer that if he did not file his list of witnesses he would lose his case on that ground alone.
It is not possible to accept this evidence of the respondent as well having regard to the fact that it is stated without any denial that he himself is a lawyer, it is improbable that he would have been pressurize by his lawyer and that he filed the list of witnesses merely by booking into the voters ' list without applying his mind as to who should be cited as his witness.
In these circumstances, we are of the opinion that it is not possible to place any reliance on the interested evidence of the respondent R.W. 45 on the question of procuring the jeep USJ 5226 from its owner Kabir Ahmad.
The evidence of P.W. 16 is most natural and reliable.
There is absolutely no reason whatsoever for rejecting his evidence which could not be outrode evidence.
We accept the evidence of P.Ws. 6, 16 and 43 on this aspect of the appellant 's case and find that the respondent had procured the jeep USJ 5226 from his close friend Kabir Ahmad for the free conveyance of his electors and that the jeep was, thereafter used for that purpose on the day of poll and seized by the officials P.Ws. 69, 73 and 81 when it was being used for the conveyance of the electors P.Ws. 10,11, 42 and others including P.W. 67 free of cost to themselves.
The appellant has thus proved satisfactorily all the three requirements of clause (5) of section 123 of the Act.
The respondent has therefore, to be held guilty of corrupt practice falling under that clause which is ordinarily difficult to prove.
We think that such corrupt practice which is very largely resorted to in the elections could be avoided by either locating polling booths within walking distance of the electors or by having mobile polling stations.
We accordingly allow this appeal in regard to this item of corrupt practical one with costs qualified Rs. 5,000 and hold that the res 28 pondent was guilty of corrupt practice under section 123(5) of the Act in regard to his election in 1977 as a member of the Bihar Legislative Assembly from No. 5 Sikta Constituency in West Champaran district.
N.V.K. Appeal allowed.

Output:
The respondent was elected to a State Assembly Constituency.
The appellant who had contested the election pleaded four items of corrupt practice in his Election Petition filed against the respondent.
The Legislative Assembly to which the respondent was elected has been dissolved and a fresh election has been held.
Notwithstanding, the fresh election the appellant pursued his election petition in order to prove corrupt practice on the part of the respondent.
In his election petition, the appellant pleaded that the respondent committed a corrupt practice falling under section 123 (5) of the Representation of the People Act, 1951 by procuring and using a jeep for the free conveyance of voters to the polling station on the date of poll.
The respondent denied the charge and contended that the appellant had not complied with the mandatory provisions of sections 81, 82 and 83 of the Act read with Order VI, Rule 15 of the Code of Civil Procedure and section 117 of the Act and the election petition was therefore liable to be dismissed.
The Judge who tried the petition, followed this Court 's ruling in Rahim Khan vs Khurshid Ahmed that Proceedings arising out of 12 election petitions are quasi criminal in nature and that evidence relating to corrupt practices should be scrutinized with scrupulous care and merciless severity; considered the evidence adduced by the parties, and found that the jeep bearing No. USJ 5226 while carrying five ladies including P.Ws. 10, 11, 42 who were voters, free of cost, for casting votes on behalf of the respondent was seized by the District Magistrate and the Superintendent of Police about 1.5 miles from the polling booth and that at the time of the seizure, the jeep was driven by a close friend of the respondent and that this friend had worked for the respondent in the election and was present in the booth on the date of the polling and that the respondent 's polling agent stood surety for the release of the jeep.
The Judge held that these facts were not sufficient to hold that the respondent procured the jeep, and that since the jeep with the voters was caught not at the polling station but at some distance way from it, it was only a case of an attempt at corrupt practice and not corrupt practice itself under section 123 (5) of the Act, and dismissed the election petition.
Allowing the appeal, this Court, ^ HELD: 1.
The requirement of the law in regard to corrupt practice under section 123 (5) of the Representation of the People Act 1951 is that in addition to proving the hiring or procuring of any vehicle or vessel for the carriage of voters to and from any polling station it should also be proved that the electors used the vehicle or vessel free of cost to themselves.
[17A B] 2.
Section 123 (5) requires three things, (1) hiring or procuring of a vehicle; (2) by a candidate or his agent etc.
and (3) for the free conveyance of an elector.
[16H] Joshibhai Chunibhai Patel vs Anwar Beg Mirza, ; , Razik Ram vs Jaswant Singh Chouhan, at 775 and Dadasahib Dattatraya Pawar vs Pandurang Raoji Jagtap, ; at 528, refereed to.
The appellant has proved satisfactorily all the three requirements of clause (5) of section 123 of the Act.
The respondent has therefore to be held guilty of corrupt practice falling under this clause which is ordinarily difficult to prove.
[27F] In the instant case, the evidence of P.Ws. 6, 16 and 43 reveal that the respondent had procured the jeep USJ 5226 from his close friend, Kabir Ahmed for the free conveyance of his electors and that the jeep was, thereafter, used for that purpose on the day of poll, and seized by the officials, P. W 69 District Magistrate, P.W. 73 Superintendent of Police and P.W. 81 Station House Officer where it was being used for the conveyance of the electors P.Ws. 10, 11, 42 and others including P.W. 67 free of cost to themselves.
The appellant s case that the respondent committed corrupt practice is clearly established.
[27D E] 13 4.
Corrupt practice such as in the instant case is very largely resorted to in the elections and could be avoided by either locating polling booths within walking distance of the electors or by having mobile polling stations.