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Appeal No. 301 of 1959.
Appeal by special leave from the judgment and order dated December 10, 1958, of the Allahabad High Court, in First Appeal No. 382 of 1958, arising out of the judgment and order dated August 6, 1958, of the Election Tribunal, Kanpur, in Election Petition No. 284 of 1957.
N. C. Chatterjee, R. K. Garg, section C. Agarwal, D. P. Singh, V. A. Sayid Muhammad Janardan Sharma and M. K. Ramamurthi, for the appellant.
A. V. Viswanatha Sastri and K. P. Gupta, for the respondent.
291 1959.
November 20.
The Judgment of the Court was delivered by SUBBA RAO J.
This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad, setting aside that of the Election Tribunal, Kanpur, dismissing the petition filed by the respondent for setting aside the election of, the appellant as a member of the Parliament from the Kanpur constituency.
In February March 1957, elections were held to fill up a parliamentary seat from the single member constituency No. 331, Kanpur.
Sri section M. Banerji, Sri Suraj Prasad and four others were candidates for the said election.
The said persons filed their nomination papers between 19th and 29th January, 1957.
The appellant was employed as Supervisor 'A ' Grade at the Government Ammunition Factory, Kirkee, and was dismissed from service on January 24, 1956, for a reason other than corruption or disloyalty to the state; and he was duly qualified to stand for the election.
He also filed his nomination paper within the prescribed time and ex facie it complied with all the provisions of the Representation of the People Act, 1951 (43 of 1951), as amended by Act XXVII of 1956, (hereinafter called the Act), and did not disclose any disqualifications.
The Returning Officer held scrutiny of the nomination papers on February 1, 1957.
As no objection was taken to the appellant 's nomination, the Returning Officer accepted it under section 36 of the Act without making any enquiry.
The polling took place on March 6, 1957, and the result was declared on March 13, 1957.
The appellant having secured the largest member of votes, was declared duly elected.
On April 24, 1957, the respondent, who is one of the voters in the said constituency, presented a petition before the Election Commission, New Delhi, praying that the election of the appellant be declared void.
In the petition he alleged ten grounds to sustain his petition.
The Election Commission constituted an Election Tribunal in the manner prescribed by the Act and referred the petition to the said Tribunal for trial.
On July 17, 1957, i.e., after the prescribed period 292 of limitation of 45 days had expired, the respondent filed an application for amendment of the election petition.
The amendments sought to be made in the election petition were as follows: "(a) In paragraph No. 5 clause 'i ', figure '9 ' between the words 'under section ' and 'clause ' is a typing mistake for figure '33 '.
In place of figure (9) figure '33 ' be substituted.
(b) In paragraph No. 5(d) at the end of the paragraph, the following sentence be added: "The nomination paper of the respondent presented before the Returning Officer was not accompanied by a certificate of the Election Commission to the effect that he has not been dismissed for disloyalty or corruption.
The improper acceptance of the nomination paper being that of the returned candidate, there is a presumption that the result of the election has been materially affected".
On August 3, 1957, the respondent filed another application for amendment seeking the second amendment, in an abbreviated form.
The proposed amendment was as follows: " (b) In paragraph No. 5(d) at the end of paragraph, the following sentence be added in the petition : " and such a certificate did not accompany the nomination paper of the respondent and the acceptance of his nomination paper materially affected the result of the election.
" By an order dated August 12, 1957, the Election Tribunal dismissed the petition on the round that the amendments sought to introduce a new ground after the prescribed period of limitation, and therefore it had no power to allow the same.
After dismissing the application, the Tribunal took up the main petition for disposal and, after recording the findings on the issues raised, dismissed the same with costs.
Against the said judgment the respondent preferred an appeal under section 116A of the Act to the High Court.
Before the High Court the learned Counsel for the respondent, withdrew the prayer for amendment of 293 sub paragraph (1) of paragraph (5) of the election petition and confined his relief only to the amendment asked for in paragraph 5(d) of the election petition, i.e., he sought to bring in the amendment under the head "improper acceptance of the nomination paper".
The High Court found, on the construction of the pleadings, that the allegations found in the original petition were sufficient to bring in the case under section 100(1)(d)(i) of the Act i.e., under the head "improper acceptance", and, therefore, the amendment asked for was only a clarification but not an introduction of a new ground: in the result, the High Court set aside the order of the Tribunal and directed it to decide the issues that arose out of the averment made in the amended para.
5(d) of the election petition.
The present appeal was filed by special leave against the said judgment of the High Court.
The contentions of the learned Counsel, Mr. N. C. Chatterjee, for the appellant may be briefly put thus: The ground for relief in the election petition was based on improper acceptance of the appellant 's nomination within the meaning of section 100(1)(d)(i) of the Act and no alternative ground tinder sub cl.(iv) of cl.(d) section 100(1) was alleged.
There was proper acceptance of the nomination paper and, therefore, the High Court or the Tribunal had no power to introduce by amendment a new ground, namely, that the result of the election had been materially affected by the non compliance with the provisions of the Act, and particularly when the ground based upon section 33 of the Act.
was given up by the respondent.
He relies upon for the first proposition on the decision of this Court in Durga Shankar Mehta vs Thakur Raghuraj Singh (1) and for the second on the decision of this Court in Harish Chandra Bajpai vs Triloki Singh (2).
Mr. A. V. Viswanatha Sastry, the learned Counsel for the respondent, contends that the said two decisions were wrongly decided and require reconsideration, and that, in any event, the amendment asked for clearly falls within the scope of the later decision.
He (1) [1955] 1 S.C.R. 267.
(2) ; 38 294 further contends that, on a fair reading of the relevant allegations in the petition as originally presented, it would be clear that the respondent stated all the necessary facts to sustain the ground he had taken in the amendment petition, and that by the amendment he was only seeking to clarify the said ground.
In any view, he argues that the appellate Court on a careful construction of the pleadings has held that the petition in substance disclosed the said ground; and the question of correctness of the said decision does not legitimately fall within the discretionary jurisdiction of this Court under article 136 of the Constitution.
At the outset the relevant provisions of the Act may be noticed.
The said provisions read: section 9 (3) : " If any question is raised as to whether a person who, having held any office referred to in clause (f )of section 7, has been dismissed is disqualified under that clause for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State, the production of a certificate issued in the prescribed manner by the Election Commission to the effect that such person has not been dismissed for corruption or disloyalty to the State shall be conclusive proof that he is not disqualified under that clause.
" section 33 (3): " Where the candidate is a person who, having held any office referred to in clause (f) of section 7, has been dismissed and a period of five years has not elapsed since the dismissal, such person shall not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
" section 36: " (1) On the date fixed for the scrutiny of nominations under section 30, the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other person , may attend at such 295 time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination, and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) * * * (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) * * * section 100: (1) Subject to the provisions of sub section (2), if the Tribunal is of opinion * * * (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any other rules or orders under this Act, the Tribunal shall declare the election of the returned candidate to be void.
The foregoing provisions, so far relevent to the present enquiry, may be summarised thus: If a candidate has been dismissed from Government service and a period of five years has not elapsed since dismissal , he will have to file along with the nomination paper a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed for corruption or disloyalty to the State.
If it has not been done, the Returning Officer, either suo motu or on objections raised by the opposite party, has to reject the nomination.
If the nomination paper does not disclose any such defect and if the 296 Returning Officer has no knowledge of that fact, he has no option but to accept the nomination.
The Returning Officer may improperly accept a nomination paper though it discloses the said defect and though an objection is raised to its reception on that ground.
Section 100(1)(d)(i) of the Act deals with improper acceptance of any nomination and section 100(1)(d)(iv) permits an attack on the ground, among others, of non compliance with the provisions of the Act.
Before we consider the contentions of the parties, it would be convenient to appreciate the true scope of the two decisions of this court in the light of the arguments advanced by the learned Counsel.
The first decision is in Durga Shankar Mehta vs Thakur Raghuraj Singh (1).
This decision turns upon the provisions of sub section
(1)(c) and sub section (2)(c) of section 100 of the Representation of the People Act, 1951 before it was amended by Act XXVII of 1956.
Sub section
(1)(c) and sub section
(2)(c), in so far as they are material to the present discussion correspond to section 100(1)(d)(i) and section 100(1)(d)(iv) respectively of the amended Act.
This case arose out of an election held in December, 1951, for the double member Lakhnadon Legislative Assembly Constituency in Madhya Pradesh, one of the seats being reserved for Scheduled Tribes.
The appellant and respondents 1, 3,5 and 7 therein were duly nominated candidates for the general seat in the said constituency, while respondents Nos. 2, 4 and 6 were nominated for the reserved seat.
No objection was taken before the Returning Officer in respect _of the nomination of either the appellant or respondent No. 2.
The appellant and respondent No. 2 were declared elected to the general and reserved seat respectively.
The respondent No. 1 filed an election petition against the appellant and the other respondents for setting aside the election as wholly void.
One of the allegations was that the respondent No. 2, was, at all material times, under 25 years of age and was consequently not qualified to be chosen to fill a seat in the Legislative Assembly of a State under article 173 of the Constitution.
The Election Tribunal held that the (1) (1955) 1 S.C.R. 267. 297 acceptance by the Returning Officer of the nomination of respondent No. 2 amounted to an improper acceptance of nomination within the meaning of section 100(1)(c) of the Act, and on that ground declared that the entire election was void.
The candidate, who was elected to the general seat preferred an appeal to this Court and contended that his nomination had been properly accepted by the Returning Officer and, therefore, if respondent No. 2 was not duly qualified to be elected, his election alone should be declared void on the ground that such disqualification shall fall under sub section, (2)(c) of section 100 and not under sub section
(1)(c) thereof This Court accepted the contention and in that context defined the import of " improper acceptance " within the meaning of section 100(1)(c) of the Act.
Mukherjea, J., as he then was, delivering the judgment of the Court observed at p. 277: " If the want of qualification of a candidate does not appear on the face of the nomination paper or of the electoral roll, but is a matter which could be established only by evidence, an enquiry at the stage of scrutiny of the nomination papers is required under the Act only if there is any objection to the nomination.
The Returning Officer is then bound to make such enquiry as he thinks proper on the result of which he can either accept or reject the nomination.
But when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the Returning Officer has no other alternative but to accept the nomination. 'This would be apparent from section 36, subsection (7) of the Act . ".
The learned Judge proceeded to state at p. 278: " It would have been an improper acceptance, if the want of qulification was apparent on the electoral roll itself or on the face of the nomination paper and the Returning Officer overlooked that defect or if any objection was raised and enquiry made as to the absence of qualification in the candidate and the Returning Officer came to a wrong conclusion on the materials placed before him.
When neither 298 of these things happened, the acceptance of the nomination by the Returning Officer must be deemed to be a proper acceptance." This judgment, therefore, is a clear authority for the proposition that if the want of qualification does not appear on the face of the nomination paper and if no objection is raised on that ground before the Returning Officer, the acceptance of the nomination must be deemed to be a proper acceptance.
Mr. A.V. Viswanatha Sastry, the learned Counsel for the respondent, attacks the correctness of this decision.
Broadly stated, his criticism is that the proceedings before the Returning Officer are summary proceeding,, and that the election petition is not an appeal from the order of the Returning Officer, but is an original petition seeking to set aside the election and that in such a petition the aggrieved party has the right to seek to set aside the election on all or any of the grounds mentioned in section 100 of the Act and that, as one of the grounds is the improper acceptance of the nomination paper, he could establish by evidence that the acceptance of the nomination by the Returning Officer was in the derogation of the statutory provisions, such as those relating to the absence of qualification in the candidate or the filing of his nomination paper unaccompanied by a certificate within the meaning of section 33(3) of the Act.
In support of this contention reliance is placed upon another decision of this Court in Veluswami vs Raja Nainar (1).
The point raised and decided in that case was whether an enquiry before the Election Tribunal was not restricted to the material placed before the Returning Officer relating to a ground, but all evidence bearing on that ground could be adduced before that Tribunal.
There unlike here, at the time of scrutiny of the nominations objection was taken to the nomination of the candidate on the ground that he was the Head Master of the National Training School, Tiruchendur, which was a Govern ment aided school, and therefore be was disqualified under section 7, cls.
(d) and (e) of the Act.
The Returning (1) ; 299 Officer upheld the objection.
In a petition to set aside the election, the returned candidate pleaded that the candidate whose nomination was rejected was not qualified to be chosen not merely on the ground put forward before the Returning Officer but also on other grounds.
This Court held that.
it is open to a party to put forward all grounds in support or negation of the claim subject only to such limitations as may be found in the Act, notwithstanding that some of the grounds were not taken before the Returning Officer.
The reason for the decision is found at p. 426 and it reads : " An election petition is an original proceeding instituted by the presentation of a petition under section 81 of the Act. . .
All the parties have the right to adduce evidence and that is of the essence of an original proceeding as contrasted with a proceeding, by way of appeal.
That being the character of the proceedings, the rule applicable is that which governs the trial of all original proceedings; that is, it is open to a party to put forward all grounds in support of or negation of the claim, subject only to such limitations as may be found in the Act." The learned Judge elaborated the point at a subsequent stage of the judgment thus: " The enquiry which a returning officer has to make under section 36 is summary in character.
He may make " such summary enquiry, if any, as he thinks necessary "; be can act suo motu.
Such being the nature of the enquiry, the right which is given to a party under section 100(1)(c) and section 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returning officer.
" When the attention of the Court was invited to the decision in Durga Shankar Mehta vs Thakur Raghuraj Singh(1), the Court distinguished that decision in the following manner: " This is not a direct pronouncement on the point now in controversy, and that is conceded." (1) [1955] 1 S.C.R. 267.
300 The two decisions can stand together and they deal with two different situations : in the former, no objection was raised at all to the nomination, while in the latter an objection was raised on the ground of disqualification; but in the election petition additional grounds of disqualification were alleged and sought to be proved: one is concerned with a case of improper acceptance and the other with a case of improper rejection.
Though some of the observations in the later decision may well have been advanced to come to a contrary conclusion in the earlier decision, Venkatarama Ayyar, J., who was party to both the decisions, distinguished the earlier one on the ground that it was not a direct pronouncement on the question raised in the later.
The earlier decision is that of five Judges but the later is of three Judges.
The learned Judges, who decided the later case, did not see any conflict between their decision and that of the earlier one.
Though there is some force in the argument advanced by Mr. A. V. Viswanatha Sastry, and, if it were res integra, some of us might be inclined not to agree with the reasoning and the conclusion of the earlier judgment, this Court is bound by its earlier decision and we do not see any justification to refer the question to a larger bench, particularly as we have come to the conclusion that the High Court was not justified in interfering with the order passed by the Tribunal in its discretion disallowing the material amendment.
The second case is a decision of four Judges and it defines the powers of the Election Tribunal in the matter of amendment of pleadings.
This decision also turns upon the relevant provisions of Act 43 of 1951 before it was amended by Act 27 of 1956.
Section 83(3) of the Act before the amendment corresponds to section 90(5) of the amended Act.
In other respects, so far, as it is material to the question raised, no change has been introduced in the other relevant sections.
In this case, the respondent in the appeal filed an election petition challenging the election of the appellants to the U.P. Legislative Assembly on the ground that they had committed corrupt practices, the material 301 allegations being, (i) that the appellants " could in the furtherance of their election enlist the support of certain Government servants ", and (ii) that the appellant No. 1 had employed two persons in excess of the prescribed number for his election purposes.
No list of particulars of corrupt practices was attached to the petition.
Long after the period of limitation prescribed for the filing of election petitions, the respondent applied for amendment of his petition by adding the names of certain village Headmen (Mukhias) as having worked for the appellants and later on becoming their polling agents.
The Election Tribunal allowed the amendment on the ground that the allegations sought to be introduced by the amendment were mere particulars of the charge already made.
Holding that corrupt practice had been committed by the appellants, it declared their election void under section 100(2)(b) of the Act.
The appellants preferred an appeal against that order to this Court and contended that the Election Tribunal had no power either under section 83(3) of the Act or under Order VI, rule 17 of the Code of Civil Procedure to allow the amendment.
In that context, this Court elaborately considered the scope of the power of the Election Tribunal to amend the pleadings in an election dispute and summarized its views in the following two propositions, at p. 392: " (1) Under section 83(3) the Tribunal has power to allow particulars in respect of illegal or corrupt practices to be amended, provided the petition itself specifies the grounds or charges, and this power extends to permitting new instances to be given.
(2) The Tribunal has power under 0.
VI, r. 17 to order amendment of a petition, but that power cannot be exercised so as to permit new grounds or charges to be raised or to so alter its character as to make it in substance a new petition, if a fresh petition on those allegations will then be barred.
" On the basis of those propositions this Court held that the petition as originally presented did not allege that the appellants had committed corrupt practices and, therefore, that the allegations sought to be introduced 39 302 by the amendment, namely, that two village Headmen section worked for the appellants and later on became their polling agents, so radically altered the character of the petition as originally framed as to make it practically a new petition, and so it was not within the power of the Tribunal to allow amendments of that kind.
Even if the Tribunal had the power under 0.
VI, r. 17 of the Code of Civil Procedure to permit an amendment raising a new charge, the Court held that it did not under the circumstances exercise a sound and judicial discretion in permitting the amendment in question.
It may be noticed that in that case the question turned upon the construction of section 83, sub sections
(2) and (3), of the Act.
Though in that case this Court was concerned with the powers of an Election Tribunal to amend the petition beyond the period of limitation, the discussion of the Court covered a wider field, presumably, because the Court intended to settle the principles governing the power of Election Tribunals to amend pleadings with a view to prevent confusion and to stabilize the procedure.
This Court rejected the argument that 0.
VI, r. 17 of the Civil Procedure Code, does not apply to election petitions.
It was observed at p. 389: " We are accordingly of opinion that the application of 0.
VI, r. 17, Civil Procedure Code to the proceedings before the Tribunal is not excluded by section 83(3).
" It was contended for the appellant in that case that even if section 83(3) of the Act did not exclude the application of 0.
VI, r. 17, Civil Procedure Code, to the proceedings before the Tribunal, the exercise of the power under that rule must, nevertheless, be subject to the conditions prescribed by section 81 for presentation of an election petition, that one of those conditions was that it should be presented within the time allowed therefor, and that accordingly, no amendment should be allowed which would have the effect of defeating that provision.
After considering the English decisions on the statutory provisions which are pari materia with our enactments, the Court held that the Election Tribunal had no power to permit a new ground to be 303 raised beyond the time of limitation prescribed by section 81 of the Act.
Mr. A. V. Viswanatha Sastry contended that the learned Judges, having rightly conceded the power of the Election Tribunal to amend the pleadings under 0.
VI, r. 17, Civil Procedure Code, went wrong in limiting that power in the way they did, and that the reason advanced by them in limiting that power equally applies to the pleadings in a suit, for, it is said, under the Indian Limitation Act, every suit filed beyond the prescribed period of limitation shall be dismissed although limitation has not been set up as a defence.
There is no doubt some force in this contention, but this argument was presumably advanced before the learned Judges and was negatived on the following ground stated at p. 392: " The Tribunal sought to get over this difficulty by relying on the principle well established with reference to amendments under 0.
VI, r. 17 that the fact that a suit on the claim sought to be raised would be barred on the date of the application would be a material element in deciding whether it should be allowed or not but would not affect the jurisdiction of the court to grant it in exceptional circum stances as laid down in Charan Das vs Amir Khan (1).
But this is to ignore the restriction imposed by section 90(2) that the procedure of the court under the Code of Civil Procedure in which 0.
VI, r. 17 is comprised, is to apply subject to the provisions of the Act and the rules, and there being no power conferred on the Tribunal to extend the period of limitation prescribed, an order of amendment permitting a new ground to be raised beyond the time limited by section 81 and r. 119 must contravene those provisions and is, in consequence, beyond the ambit of authority conferred by section 90(2).
" This passage indicates that the learned Judges were aware of the argument now advanced and, for the reason mentioned by them, namely, that unlike a civil suit wherein the Court can extend the period of limitation in a proper case, the Tribunal has no such power, rejected the argument.
We ,are bound by this decision, (1) (1920) L.R. 47 I.A. 255.
304 As this stage, we must guard against one possible misapprehension.
Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations, and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their effectiveness and defeat the very purpose for which they are constituted.
We must make it clear that within the limits prescribed by the decisions of this Court the discretionary jurisdiction of the Tribunals to amend the pleadings is as extensive as that of a civil Court.
The same well settled principles laid down in the matter of amendments to the pleadings in a suit should also regulate the exercise of the power of amendment by a Tribunal.
This aspect has not been ignored by this Court in the aforesaid decision, and the Court observed, at p. 394: " It is no doubt true that pleadings should not be too strictly construed, and that regard should be had to the substance of the matter and not the form.
" The foregoing discussion yelds the following results: (1) Sub cls.
(i) and (iv ) of section 100(11)(d) of the Act provide for two distinct grounds the former for the case of improper acceptance of any nomination, and the latter for that of non compliance with the provisions of the Constitution or of the Act, or of any rules or orders made under the Act; (2) when the candidate appears to be properly qualified on the face of the electoral roll and the nomination paper and no objection is raised to the nomination, the acceptance of the said nomination by the Returning Officer must be deemed to be proper acceptance ; (3) even if there is a proper acceptance, it is open to the petitioner to question the validity of the election under section 100(1)(d)(iv) on other grounds, namely, that the candidate whose nomination was accepted was not qualified at all or could not be deemed to be duly nominated as a candidate for the reason that he did not comply with the provisions of section 33(3) of the Act; and (4) if the second ground in substance is not taken in the petition substance is more important than form the Tribunal has no power after the prescribed period of limitation for the filing 305 of the petition to allow an amendment introducing the second ground.
With this background we shall proceed to scrutinize the pleadings in the light of the rival contentions.
The election petition contains seven paragraphs.
The relief claimed is that the election of the appellant from the parliamentary constituency No. 331, Kanpur, be declared void.
The first paragraph gives the credentials of the petitioner to enable him to file the petition.
Paragraphs 2 and 3 give the sequence of events which ended in the declaration of the appellant as duly elected from the constituency to the Parliament.
Paragraph 5 states that the election of the appellant is void and is liable to be set aside on the ten grounds, among others, specified therein.
Paragraph 6 states that the cause of action accrued to the petitioner on or about January 29, 1957, when the nomination papers were filed for the said election, and subsequent thereto.
Now coming to the grounds in sub para(a), (b) and (c) of para 5, it is stated that the ,appellant had been dismissed by Government from service on charges of disloyalty and gross misconduct on January 24, 1956, but he did not submit to the aid order and filed a writ petition in the High Court at Calcutta questioning the validity of the said order, that under the circumstances, he should be deemed to be a Government servant and, therefore, he was not competent to be nominated as a candidate for election to Parliament.
Sub paragraph (d) is the most important paragraph to the present enquiry and therefore it may be extracted in full.
It reads: " That apart from the above mentioned reasons the nomination paper of the respondent was also improperly accepted by the Returning Officer, in asmuch as, the respondent having been dismissed from Government Service did not obtain a certificate in the prescribed manner from the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State." This sub paragraph in clear and unambiguous terms raises the ground of improper acceptance of the nomination paper by the Returning Officer i.e., the ground 306 covered by section 100(1)(d)(i) of the Act.
The reason for sustaining the said ground is stated to be that, having been dismissed from Government service, he did not obtain a certificate in the prescribed manner from the Election Commission.
Ex facie this sub paragraph does not refer to section 33(3) or to the contents of that sub section.
A nomination paper may be accepted by the Returning Officer in spite of one or other of the following two defects: (i) the candidate who has been dismissed may have filed the nomination paper without its being accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he has not been dismissed from service for corruption or dis loyalty to the State: vide section 33(3); and (ii) the candidate has been disqualified for being chosen as a member of Parliament: vide section 9(3).
In this subparagraph in support of the ground that the nomination of the appellant was improperly accepted, reference was made to the second defect and not to the first.
That this must have been the intention of the respondent is also made clear from the circumstance that in sub para (i) reference was made to the latter sub section but not to the former.
The argument that the opening words of sub para (d), " That apart ", indicate that this is a ground in addition to the ground based on the non obtaining of a certificate in the prescribed manner, and, therefore, should only refer to the non accompaniment of a certificate, has no force; for, sub paras (a), (b) and (c), which precede sub para (d) raise a different point altogether, namely, that notwithstanding the dismissal, as the appellant had filed a petition in the High Court questioning the validity of the order of dismissal, he was still a Government servant on the crucial date.
Be it as it may, the important point to be noticed is that sub paragraph (d) raises a ground under sub cl.
(i) and not under subcl.
(iv) of section 100(1)(d) of the Act, and even if the facts mentioned therein are disannexed from the ground, they refer only to the disqualification of the appellant to stand as a candidate for the election and not to the procedural defect covered by section 33(3) of the Act.
Subparagraphs (e), (f) and (g) relate to the objections 307 which are not material for the present inquiry.
Sub paragraph (h) contains a general statement that the appellant was disqualified to be chosen to fill the parli mentary seat.
Sub paragraph (i) specifically refers to section 9(3) of the Act.
We are not also concerned with the allegations in sub para (j).
The foregoing analysis of the allegations in the petition so far as they are relevant to the question raised, discloses the following two circumstances : (i) the ground taken in the petition was that there was an improper acceptance of the nomination covered by section 100(1)(d)(i) for the reason that the appellant, having been dismissed from Government service, did not obtain a certificate in the prescribed manner; and (ii) there was no ground which would fall under sub cl.
(iv) of section 100(1)(d) of the Act.
viz., that the appellant was not to be deemed to be duly nominated as a candidate as his nomination paper was not accompanied by a certificate issued in the prescribed manner by the Election Commission to the effect that he had not been dismissed for corruption or disloyalty to the State.
In the application for amendment which was filed after the prescribed period of limitation, two amendments were asked for one to sub para (i) of para 5 and the other to sub para (d) thereof.
The former was for substituting the figure " 33 " for the figure " 9 " and the latter to introduce a statement in that paragraph to the effect that the nomination paper was not accompanied by the prescribed certificate.
The subsequent petition, as we have already noticed, sought for the same amendment to para (5)(d) in an abbreviated form.
But what is important to notice is that even the proposed amendment sought to bring in the said statement under the ground of "improper acceptance" and not under section 100(1)(d)(i) of the Act.
The appellant filed a counter affidavit opposing both the amendments.
The Tribunal noticed the judgment of this Court and applied the principles laid down therein to the facts before it.
It also considered in detail the allegations in the petition and arrived at the following findings: (i) " All what has been urged throughout is that the respondent was a Government servant or a 308 dismissed Government servant and no certificate having been obtained from the Election Commission about his dismissal not being for corruption or disloyalty, he was not eligible for election as a candidate to the House of the People ", and (ii) sub section (3) of section 33 which is a provision laying down a certain procedure was never in the mind of the petitioner while the petition was being drafted or prepared, and that is why we find no reference to the certificate not being filed with the nomination paper." He concludes his discussion thus : "It would thus be seen that the amendment sought by the petitioner offends against the conditions laid down by their lordships of the Supreme Court in Harish Chandra Bajpai vs Triloki Singh (1) relating to the application of Order VI, rule 17 of the Civil Procedure Code to proceedings before an Elettion Tribunal.
It has been specifically laid down that an amendment will not be allowed if the effect of it be to permit a new ground or charge to be raised or to so alter its character as to make it in substance a new petition.
That would exactly be the effect of the amendment sought by the petitioner It will be seen, therefore, that the Tribunal has put before itself the correct principles governing its powers of amendment and found, on a construction of the allegations in the petition, that by the proposed amendment, the respondent was seeking to introduce a new ground after the period of limitation.
This order was made by the Tribunal in the exercise of its discretion in strict conformity with the principles laid down by this Court.
The next question is whether the High Court was justified in setting aside that order.
It was argued before the High Court that the amendment application was wrongly refused and that even as the election petition stood without the amendment it contained sufficient averment of facts to make out a ground under section 100(1)(d)(i) of the Act, and in the alternative that it made out a ground under section 100(1)(d)(iv) of the (1) (1957) S.C.R.370.
309 Act.
Before the High Court the learned Counsel for the respondent withdrew his prayer for the amendment of sub para(1) of para 5 of the election petition; with the result the only paragraph on which reliance was placed by the respondent was sub para (d) of para 5.
The High Court also noticed the judgment of this Court in Harish Chandra Bajpai 's Case (1) and posed the following question for its decision: " The important thing is whether in substance the petition contains the particular ground of attack or not.
" It proceeded to consider whether the original subpara (d) of para 5 contained any ground and if so, what?: and whether a new ground was sought to be raised in the garb of an amendment.
After reading the said sub para, it expressed the view that the ground, in its opinion, would fall under section 100(1)(d)(i) of the Act; and that conclusion was based on the allegations in the said sub para that there was an improper acceptance of the nomination and that the appellant had not obtained the necessary certificate from the Election Commission.
It has stated that in the circumstances of the case the respondent meant to state that, as the certificate had not been obtained, it could not have accompanied the nomination paper.
The learned Judges of the High Court concluded their discussion thus: " We also think that the Tribunal should have permitted the amendment because the ground of attack had been clearly made out and the only mistake committed by the appellant was not to put it in proper words," In short, the view of the High Court was that sub.
para (d) contained the ground under section 100(1)(d)(i) of the Act and what was asked for by way of amendment was only a clarification of that ground.
The High Court, in our view, has missed the real point raised before it.
We have already pointed out that, in view of the judgment of this Court in Durga Shankar Mehta 's Case (2)there was no improper (1) ; (2) (1955) 1 S.C.R. 267.
40 310 acceptance of the nomination paper by the Returning Officer.
for, the nomination paper ex facie did ' not disclose any defect or disqualification.
The petition for amendment asked for inserting a statement in sub para (d) of para 5 under the ground of improper acceptance of the nomination paper, viz., that the prescribed certificate did not accompany the nomination paper of the candidate, and that at the appellate stage the other proposed amendment based upon section 33(3) of the Act was given up.
The result was that no relief for raising the ground under section 100(1)(d)(iv) had survived and that the ground under section 100(1)(d)(i) was not open to the respondent.
In the circumstances, the amendment would be foreign to the scope of the enquiry under the ground governed by section 100(1 )(d)(i) of the Act.
That apart, could it be said that the High Court was justified in the circumstances of this case to interfere with the discretion of the Tribunal ? An appellate Court has no doubt an unquestioned right to review or modify the order made by a subordinate Court; but it is undesirable to do so when the subordinate Court made an order in the exercise of its discretion without exceeding the limits of its power, unless it acted perversely or unless the view taken by it is clearly wrong.
In this case, the Election Tribunal neither exceeded its powers nor acted perversely; and indeed its order advanced the cause of justice in that it helped to maintain the election of a candidate who was duly qualified and who secured a large majority of votes over all the rival candidates.
We have carefully considered the 'reasons set out in the judgment of the High Court in support of its decision that the amendment should have been allowed by the Tribunal, and in our opinion the said reasons are unsatisfactory and on some points farfetched.
In the circumstances, we do not see any justification, after the entire petition was disposed of, for the High Court to interfere with the said discretion.
We therefore set aside the order of the High Court.
It is represented to us by the learned counsel for the appellant that in the High Court the only 311 point argued was that the amendment should have been allowed and no other point was pressed.
The learned counsel for the respondent does not accept this position.
In the circumstances, we have no other option but to remand the case to the High Court for disposal in accordance with law.
The respondent will pay the costs to the appellant.
Appeal allowed.

Output:
The appellant held an office under the Government and was dismissed from service on January 24, 1956, for a reason other than corruption or disloyalty to the State.
He filed his nomination paper for election to Parliament which did not disclose any disqualifications.
No objection was taken to the nomination and it was accepted without making any enquiry.
After the poll the appellant was declared duly elected.
The respondent filed an election petition challenging the election of the appellant on the ground, inter alia, that the nomination of the appellant had been improperly accepted as he was dismissed from Government service and he had failed to obtain a certificate from the Election Commission that he had not been dismissed for corruption or disloyalty to the State.
After limitation for filing the petition had expired, the respondent applied to the Election Tribunal for amendment of the petition seeking to add to this ground the statement that the nomination paper was not accompanied by the prescribed certificate.
The Tribunal disallowed the amendment on the ground that the amendment sought to introduce a 290 new ground after the period of limitation and then dismissed the election petition holding that the appellant was qualified to stand for the election and his nomination was not improperly accepted.
On appeal, the High Court held that the amendment should have been allowed as it merely asked for a clarification and not the introduction of a new ground and consequently it set aside tile order of the Tribunal and directed a retrial of the issue involving.
The appellant obtained special leave and appealed.
Held, that the amendment could not be allowed as it sought to introduce a new ground in the petition after the period of limitation.
The ground taken in the petition was that there was an improper acceptance of the nomination covered by section 100(1)(d)(1) of the Representation of the People Act, 1951.
But there was no improper acceptance of the nomination for the nomination paper ex facie did not disclose any defect or disqualification.
There being no subsisting prayer seeking to raise the ground under section 100(1)(d)(iv) for non compliance with the Provisions of section 33(3) of the Act, the amendment was foreign to the scope of the, enquiry under the ground covered by section 100(1)(d)(1).
Durga Shankar Mehta vs Thakur Raghuraj Singh, [1955] 1 S.C.R. 267 and Harish Chandra Bajpai vs Triloki Singh ; , followed.
Veluswami vs Raja Nainay, ; , referred to.
There was no jurisdiction in the High Court to interfere with the discretion of the Election Tribunal refusing to allow the amendment after the entire petition had been disposed of.
It is undesirable for an appellate Court to interfere with the order of a subordinate Tribunal made in the exercise of its discretion without exceeding the limits of its powers, unless it has acted perversely or has taken a view which is clearly wrong.


Input:
Civil Appeal No. 3556 of 1987.
From the Judgment and order dated 2.9.1987 of the Punjab and Haryana High Court in C.W.P. No. 5781 of 1987.
L.M. Singhvi, H.M. Singh, A.M. Singhvi, R.S. Yadav and N. Waziri for the Appellants.
Kuldeep Singh, Additional Solicitor General, C.M. Nayar B. R. Agarwala, and Ms. Sushma Manchanda for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the decision of the Punjab and Haryana High Court dismissing a writ petition of the appellants in limine.
On 8th of May, 1987, the Government of Punjab, Respondent No. 1, notified in the State Gazette the criteria for holding of Competitive Entrance Examination for selection of candidates for admission to MBBS/BDS course in the three medical colleges and two dental colleges within the State.
The Notification, inter alia, provided: "(1) Admission shall be given on the basis of the relative merit of candidates determined on the result of the Competitive Entrance Examination.
In the case of reserved seats relative merit of the candidate shall be determined within each category of reservation except that in the category of Sportsmen/Sportswomen admission shall be made out of eligible candidates on the basis of their gradation done by the Department of sports (Punjab) and in the category of children/widow of the defence personnel candidates of sub category vii (b) given in para III(d) infra, shall be admitted only if eligible candidates of sub category vii(a) are not available.
A candidate, however, must secure minimum of 50 per cent marks in the competitive Entrance Examination to qualify for the admission.
However, candidates belonging to the Scheduled Castes/Scheduled Tribes, Sportsmen/Sports 247 women, children/grand children of political sufferers and handicapped categories shall be eligible only if they secure minimum 35 per cent marks in the Entrance Examination.
" 100 seats out of total available seats in the MBBS/BDS Courses were reserved for Scheduled Castes and Scheduled Tribes candidates.
There is no dispute that on the basis of the selection test only 32 qualified candidates of the reserved category were available.
The prospectus published for the Competitive Examination by the Punjabi University, Patiala, in a Note below Para III(a) (ii) under the heading of Distribution of Seats provided: "Seats left vacant in any reserved category, owing to non availability of eligible candidates, may be filled from the eligible candidates belonging to General Category." On 28.7.1987, the following order was made: "The President of India is pleased to lower down the percentage of pass marks in P.M.T. for Scheduled Castes and Scheduled Tribes candidates for admission to MBBS/BDS Courses in the State Medical/Dental Colleges from 35 per cent to 25 per cent during the session 1987 only.
Para III (a))(i) of the Punjab Government Notification No. 2373 5 HB Ill 87/10493 dated 8.5.
1987 stands modified to this extent.
" Challenge before the High Court as also before this Court is against this Notification and four contentions have been advanced: ( 1) The Government order and the University Prospectus having provided that 35 per cent would be the minimum qualifying marks for the reserved categories named therein, it was not open to the respondents to make the impugned Notification.
The Note referred to above which provided that upon candidates in the reserved category not being found, the remaining seats would revert to the general pool; lowering of the qualifying percentage of marks prejudices the candidates in the general category, who would have got the benefit of the 548 Note is an arbitrary act and cannot be sustained.
(2) The prospectus contained an offer and after the candidates have appeared in the examination on the basis of such offer and representation, a new basis cannot be brought in.
(3) The Regulation made by the Indian Medical Council prescribes a minimum of 40 per cent marks and the regulation is binding on the University as also the Government and a qualification lower than what has been prescribed by the Medical Council in exercise of its Regulation Making Power is contrary to law and against the spirit of the scheme.
(4) Doctors have got to be adequately qualified and professional standards must be high as they deal with human lives.
Lowering standard on the plea of reservation of a sizeable portion of the seats for the backward classes is against the interest n of the nation and detrimental to profession standards.
We shall first deal with the prescription of the Medical Council by Regulation.
The Secretary of the Medical Council of India has filed an affidavit.
Regulation II prescribes: "In respect of candidates belonging to Scheduled Castes/Scheduled Tribes, the minimum marks required shall be 40 per cent in lieu of 50 per cent for general candidates.
" In his affidavit the Secretary has further averred that: "The Medical Council of India has fixed these minimum marks for admission to Medical Courses on the recommendation of the Expert Body who had taken all facts and circumstances into consideration.
The main factor before the Council in framing the Regulations was that marks below 40 per cent will adversely affect the studies and such candidates would not have full benefit of medical education along with the candidates with higher capability.
In view of the fact that various Governments were resorting to methods to reduce the minimum marks in case of Scheduled Castes and Scheduled Tribes 549 students, again discussions took place in the Executive Committee of the Medical Council of India on 5.3.1982 and this issue was fully considered and a recommendation was recorded on this aspect.
" The Regulation referred to above is said to have been made in exercise of powers under Section 33(J) of the .
Dr. Singhvi for the appellants has very much relied upon the stand taken by the Indian Medical Council in support of the claim of the appellants that the action of the respondents in reducing the qualifying marks to 25 per cent as against the minimum of 40 per cent is wholly wrong and cannot be sustained.
We have taken up the last contention first because if the Regulation is found to be binding then certainly both the original as also the subsequent Notification would be bad.
As against the basic requirement of 40 per cent for scheduled castes and scheduled tribes candidates the original Notification had put the requirement of 35 per cent five per cent below the minimum and the subsequent Notification reduced it by 10 per cent more.
The question as to whether the Regulation of the Council is binding came for determination before a three Judge Bench of this Court.
In the case of State of M.P. & Anr.
vs Kumari Nivedita Jain & Ors ; , the Court found that: "Regulation II of the Council is merely in the nature of a recommendation.
Regulation II begins with the words 'selection of students in medical college should be based solely on merit '.
Language used in Regulation II is deliberate and is intended to indicate the intention of the Council that it is only in the nature of a recommendation .
The Court further went into the matter and observed that: "The authority of the Council extends to the sphere of maintaining proper medical standards in Medical Colleges or institutions necessary for obtaining recognised medical qualifications.
By virtue of this authority it may be open to the Council to lay down the minimum educational qualifications required of a student who may seek 250 admission into a Medical College.
In other words, the eligibility of a candidate who may sit to get admitted into a medical college for obtaining recognised medical qualifications may be prescribed by the Council.
All the candidates who are eligible for admission into medical colleges or institutions for getting themselves qualified as medical practitioners are entitled to seek admission into a medical college of institution.
As to how the selection has to be made out of the eligible candidates for admission into the medical college is a matter which has necessarily to depend on circumstances and conditions prevailing in particular State.
Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council, the question of selection of candidates out of the candidates eligible to the medical course does not appear to come within the purview of the Council.
" The view of a coordinate Bench is binding upon us and we find it difficult to differ from what has been held in the aforesaid judgment.
It is true that there is an observation of a two Judge Bench in State of Kerala vs Kumari T. P. Roshana & Anr., ; that the Regulations of Medical Council are binding but that observation k made by Iyer, J. was in passing while in Nivedita 's case (supra) the matter directly fell for consideration.
Dr. Singhvi also relied upon the observations of Fazal Ali, J. in a three Judge Bench decision in Krishna Priya Ganguly etc.
vs University of Lucknow & Ors. etc.
, [1984] I SCR 302 but here again it was an obiter; at any rate reference to Nivedita Jain 's case was not made.
It is interesting to note that in Nivedita Jain 's case (supra), in a situation almost similar as here, the State Government fully deleted the prescription of the percentage of marks in the selection examination.
That certainly was a worse situation than the one before us.
Yet that action was upheld.
In that view of the matter, we do not think the appellants are entitled to make any grievance on this score.
Now that this legal ground has failed, the other three questions raised by learned counsel for the appellants may be examined.
As 251 pointed out in Nivedita Jain 's case the selection is at two stages.
The Medical Council prescribed a percentage of marks as the basic minimum to be obtained in the qualifying examination (conducted by the University) and qualified candidates only applied for admission.
Since the seats available are much less than the candidates seeking admission.
a further selection becomes necessary to eliminate candidates in excess of the available seats.
The candidates belonging to the Scheduled Castes and the Scheduled Tribes who applied for admission and were to be subjected to selection must have secured appropriate marks in the qualifying examination and otherwise they could not have applied.
The plea which is raised before us, namely, that there would be an element of estoppel and the action would be branded as arbitrary would certainly have arisen in [he case of Nivedita Jain (supra), but the Court did not find the total abolition of the percentage qualification as either arbitrary or hit by rules of estoppel.
Reservation is not in dispute The State government had really intended that 100 seats should go to the candidates of Scheduled Castes and Scheduled Tribes.
When in the selection test that number of candidates was not available, the question of reduction of the qualifying marks arose.
In the facts of the case, we are not prepared to accept the contention of Dr. Singhvi that Government 's action is arbitrary.
In fact, the short affidavit filed by the respondents indicates clearly under what circumstances the variation was made.
We do not think that there is any force in the plea of estoppel.
It is not disputed that after the percentage was reduced in the qualifying standard all the 68 seats have been filled up by Scheduled Castes and Scheduled Tribes candidates and teaching has begun from September.
It is a fact that these 68 candidates are not before us as they have not been impleaded.
It would not be open to us to cancel their admission behind their back, nor would it be possible to require the State Government to create additional seats to accommodate the appellants therein.
Before we part with the appeal we think it appropriate to indicate that the standard of medical profession should not be compromised in national interest.
There has been perceptible fall in national standards and general efficiency of the professional men.
While it is not necessary for us to say anything against reservation, we approve of the concern shown by the Indian Medical Council that high standards of efficiency should be maintained and that can only be 252 possible if the State and the Council cooperates to maintain a high standard.
This aspect should be kept in view while guidelines are prescribed for selection of students for the medical courses.
The impugned Notification of the State Government shows that the reduction is confined for this year.
We hope there would not be necessity for a repetition of this action.
The appeal fails and is dismissed.
We make no order as to costs.
S.L. Appeal dissmissed.

Output:
% One hundred seats out of the total seats available in the M.B.B.S./B.D.S. courses were reserved for the Scheduled Castes and Scheduled Tribes candidates, for whom the Indian Medical Council had prescribed by its Regulation II a minimum of 40 per cent marks for eligibility of admission.
The Government of Punjab by a notification (dated May 8, 1987) lowered the percentage of the pass marks for the said candidates from 40 per cent to 35 per cent as against a minimum of SO per cent marks for the general category candidates.
on the basis of selection test held, only 32 qualified candidates of the reserved category were available.
The prospectus published by the university for the competitive examinations provided that the seats left vacant in any reserved category owing to the non availability of the eligible candidates may be filled up from the eligible candidates of the general category.
Accordingly, the remaining seats (out of 100) should have reverted to the general pool of the eligible candidates.
But the government issued an order (dated July 28, 1987) whereby the percentage of pass marks for the Scheduled Castes and Scheduled Tribes candidates was lowered from 35 per cent to 25 per cent (for the 1987 session only).
The appellants challenged the above said orders of the government before the High Court which dismissed the Writ Petition filed by them.
The appellants appealed this Court by special leave.
Dismissing the appeal, the Court, 245 ^ HELD: If the Regulation 11 of the Indian Medical Council is found to be binding, then the impugned orders of the government would be bad, but the Regulation is merely in the nature of a recommendation and the language used in the Regulation is deliberate, intended to indicate the intention of the Council, as inter alia held by a three Judge Bench of this Court in The State of M.P. and Anr.
vs Kumari Nivedita Jain and Ors., ; That was a similar case as this one, and the appellants are not entitled to make any grievance on this score.[249D: 250] The State Government had intended that 100 seats should go to the candidates of the scheduled castes and scheduled tribes.
When that number of the candidates has not available, reduction in the qualifying marks had to be effected, and the government 's action cannot be said to be arbitrary.
[251 D E] After the percentage in the qualifying standard was reduced, all the remaining 68 seats have been filled up by the scheduled castes and scheduled tribes candidates and teaching has begun.
These 68 candidates are not before the Court, not having been impleaded.
It is not open to the Court to cancel their admission behind their back, nor would it be possible to require the State Government to create additional seats to accommodate the appellants.
[251F] OBSERVATION: The standard of medical profession should not be compromised in the national interest.
There has been a perceptible fall in the national standards and general efficiency of the professional men.
While it is not necessary to say anything against reservation, the Court approves of the concern shown by the Indian Medical Council that high standards of efficiency should be maintained, and that can only be possible if the State and the Council cooperate to maintain a high standard.
This aspect should be kept in view when the guidelines are prescribed for the selection of the students for the medical courses.
The impugned notification of the State Government shows that the reduction is confined to one year 1987 only.
It is hoped there would be no necessity for a repetition of this action.
[251G H; 252A B] State of M.P. and Anr.
vs Kumari Nivedita lain and Ors.
; , ; State of Kerala vs Kumari T.P. Roshana & Anr. ; and Krishna Priya Ganguly etc.
vs University of Lucknow & 246 Ors.
; , , referred to.


Input:
230 239, 241, 249 251, 256, 257, 290, 303, 306 349, 351, 352, 355 357 of 1955 and Nos. 33 & 36 of 1956.
Petitions under Article 32 of the Constitution of India.
480 Achhru Ram and Naunit Lal, for the petitioners in Petitions Nos. 239, 241 & 251 of 1955.
Naunit Lal, for the petitioners in Petitions Nos. 249 & 250 of 1955.
B.D. Sharma and K. L. Mehta, for the petitioners in Petitions Nos. 290, 303, 306 349, 351, 355 357 of 1955 and 36 of 1956.
B. D. Sharma, for the petitioner in Petition No. 33 of 1956.
K. L. Mehta, for the petitioner in Petition No. 352 of 1955.
I. N. Shroff, for the petitioners in Petitions Nos.
230 238, 256 257 of 1955.
H. N. Sanyal, Additional Solicitor General of India, M. N. Kaul and T. M. Sen, for the respondents.
November 14.
The Judgment of the Court was delivered by WANCHOO, J.
These sixty nine petitions under article 32 of the Constitution by various land owners in the former State of Ajmer attack the validity of the Ajmer Abolition of Intermediaries and Land Reforms Act, 1955 (Ajmer III of 1955) (hereinafter called the Act).
The petitions disclose a large number of grounds on which the validity of the Act is impugned; but learned counsel, Mr. Achhru Ram and Mr. B. D. Sharma, appearing for various petitioners, have confined their arguments only to certain grounds raised in the peti tions.
We propose, therefore, to consider only the grounds urged before us.
The Act was passed by the Ajmer Legislative Assembly and received the assent of the President on May 29, 1955.
Section 4 of the Act provided for vesting of all estates held by intermediaries, as defined in the Act, in the State Government from a date to be notified.
The Act came into force on June 23, 1955, and August 1, 1955, was notified as the date on which the estates held by intermediaries would vest in the State Government.
The present petitions followed on the fixing of this date.
It is not disputed that the Act is protected under article 31 A(l)(a) of the Constitution inasmuch as it is a 481 piece of legislation for acquisition by the State of any estate or of any rights therein.
The argument is that in spite of this protection, either the whole Act or certain provisions of it are invalid, for reasons urged by learned counsel on behalf of the petitioners.
Mr. Achhru Ram attacks only sections 8 and 38 of the Act.
Mr. Sharma attacks the competency of the Ajmer legislature to pass the Act and also urges that in any case it does not apply to the case of jagirdars, one of whom is a petitioner before us in Petition No. 33 of 1956.
These four are the only grounds that have been urged before us, and we shall deal with them seriatim.
Re. section 8.
Section 8 is in these terms " Where an intermediary has on or after the 1st day of June, 1950, (a) granted a lease of any land in the estate or any part thereof for any non agricultural purposes other than mining for a period of three years or more; or (b) granted a lease or 'entered into a contract relating to any forest, fishery or quarry in his estate for a period of three years or more ; Or (c)granted a lease for the cultivation of any area of bir or pasture or waste land ; and the Collector is satisfied that such lease or contract was not made or entered into in the normal course of management but in anticipation of legislation for the Abolition of Intermediaries, the Collector may, subject to any rules made under this Act, by order in writing, cancel the lease or the contract as the case may be." It provides for cancellation of certain leases granted on or after June 1, 1950, where the lease is for a period of three years or more with respect to matters dealt with in cls.
(a) and (b) and where the lease is for any period in respect of matters dealt with in cl.
The Collector has been given the power to cancel such leases if they are not, made in the normal course of management but in " anticipation of legislation for abolition of intermediaries.
The argument is that 61 482 there can be no retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 19(1)(f) and there was no restriction on such right.
It is said that in certain contingencies the cancellation of a lease might expose the land owner to the risk of paying compensation to the lessee, particularly in cases where the land owner might have realised the entire lease money in one lump sum for a lease of more than three years ' duration.
We are of opinion that there is no force in this contention.
The legislature was certainly competent, under entry 18 of List 11 of the Seventh Schedule to the Constitution relating to Land, to make this provision.
It cannot be disputed that the legislature has power in appropriate cases to pass even retrospective legislation.
Provisions for cancellation of instruments already executed are not unknown to law; for example, the Insolvency Acts provide for setting aside transfers made by insolvents under certain circumstances.
Therefore, the Ajmer Legislature certainly had the power to enact such a provision, and in the circumstances in which this provision has been made in the Act, it cannot be said that it is not protected under article 31 A.
The provision is not an independent provision; it is merely ancillary in character enacted for carrying out the objects of the Act more effectively.
The intention of the legislature was to give power to the Collector after the estates vested in the State Government to scrutinise leases of this kind made after June 1, 1950, which was apparently the date from which such legislation was under contemplation and to see whether the leases were such as a prudent land owner would enter into in the normal course of management.
Such leases would be immune from cancellation ; but if the Collector found that the leases were entered into, not in the normal course of management but designedly to make whatever the land owners could before the estate came to be transferred to the State Government, he 'Was given the power to cancel the same, as they would obviously be a fraud upon the Act.
Such, cancellation would subserve the purposes of the Act, and 483 the provision for it would therefore be an integral part of the Act, though ancillary to its main object, and would thus be protected under article 31 A (1)(a) of the Constitution.
Re. section 38.
Section 38 reads as follows Notwithstanding any agreement, usage, decree or order of a court or any law for the time being in force, the maximum rent payable by a tenant in respect of the land leased to him shall not exceed one and half times the revenue payable in respect of such land.
" This section provides for fixing the maximum rent at fifty per cent.
above the land revenue, and it is urged that this is an unreasonable restriction on the right of the land owner to let his holding.
The object of this legislation is to do away with intermediaries, and for that reason the estates held by intermediaries have been ' made to vest in the State Government tinder section 4.
Chapter VI of the Act, however, provides for allotment of lands for personal cultivation to intermediaries whose estates have been taken over upto a certain limit and the intermediaries who have been allotted lands under section 29 of the Act are called Bhuswamis or Kashtkars according to the nature of the lands allotted to them; (see section 30).
Bhuswamis and Kashtkars hold land directly from the Government and pay revenue to the Government; (see section 32).
The intention of the Act, therefore, is that intermediaries who have been allotted lands should cultivate them personally.
But section 37 permits Bhuswamis to let the whole or any part of the land allotted to them, while Kashtkars are forbidden from letting any part of their land except in certain circumstances when they are suffering from some disability.
In order, however, that the main object of the Act (namely, that the land should be cultivated by the person to whom it is allotted and that there should be no rackrenting) is attained, section 38 has been provided fixing the maximum rent at 50 per cent.
above the land revenue.
Thus the profit which a Bhuswami 484 can make by letting his land is so reduced compared to what he would earn if he cultivated it himself as to discourage him from letting the land and becoming a. new kind of intermediary.
Section 38, therefore, is another ancillary section, like section 8, and is meant to subserve the purposes of the Act, namely, the abolition of all intermediaries and encouragement of self cultivation of the land.
We are, therefore, of opinion that section 38 is also protected under article 31 A(l)(a) of the Constitution as an ancillary provision necessary for the purposes of carrying out the objects of the Act.
The competency of the Ajmer Legislation.
The argument in this behalf is put in this way.
The Act is a piece of legislation for the acquisition of estates.
Before the Constitution (Seventh Amendment) Act, 1956, came into force on November 1, 1956, there were two entries relating to acquisition of property in the Seventh Schedule, namely, entry 33 of List 1 (acquisition or requisitioning of property for the purpose of the Union) and entry 36 of List II(acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List 111).
The argument continues that the Act was passed by the Ajmer legislature under the power it was supposed to have under entry 36 of List 11 read with section 21 of the Government of part C States Act, 1951 (XLIX of 1951).
But entry 36 of List 11 only gives power to the State legislature to acquire property for purposes other than the purposes of the Union.
As, however, the property aquired under the Act vested in the President and therefore the Union after its acquisition, the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the Ajmer legislature.
In support of this argument Mr. Sharma referred us to various Articles of the Constitution in Part XII thereof relating to Finance, Property, Contracts and Suits, and also articles 73 and 239.
He contends that these provisions show that before the Government of Part C States Act was passed, the legislative power with respect to the areas comprised in Part C States 485 was in the Union which also through the President had executive power over the subjects over which the Parliament could legislate with respect to what were Part C States.
After the passing of the Government of Part C States Act, by virtue of the power conferred on Parliament by article 240, there was no change so far as the executive power in Part C States was concerned and it is still vested in the President.
Any property acquired for the purposes of Part C States vests in the President or the Union.
Therefore, according to him, the Ajmer legislature would have no power to enact a law for acquiring estates under entry 36 of, List 11; for the property so acquired would really be for the purposes of the Union and no law under that, entry could be made for acquiring property for the purposes of the Union.
We are of opinion that the argument, though plausible, must be rejected.
Assuming, without deciding.
that even after the passing of the Government of.
Part C States Act, any property acquired for a Part C State vested in the Union Government by virtue of the provisions of Part XII of the Constitution, the question still remains whether the Ajmer legislature could make a law under entry 36 of List II acquiring estates even though the estates when acquired may legally vest in the Union Government.
Now, entry 33 of List I refers to acquiring of property for the purposes of the Union.
It does not lay down in whom the property should vest after it has been acquired.
Similarly, entry 36 of List 11 speaks of acquisition of property, except for the purposes of the Union, and makes no mention in whom the property should vest after it has been acquired.
Entry 42 of List II which deals with compensation for such acquisition as well as for acquisition for any other public purpose, also does not speak where the property should vest after acquisition.
It is not necessary, therefore, to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under those two entries.
The key to the interpretation of these two entries is not in whom the property would vest after it has been acquired 'but whether the 486 property is being acquired for the purposes of the Union in one case or for purposes other than the purposes of the Union in the other.
It is in this context that the competency of the Ajmer legislature to enact this law under entry 36 of List 11 is to be judged.
Section 21 of the Government of Part C States Act created a Legislative Assembly for Ajmer and gave that legislative assembly power to make laws for the whole or any part of the State with respect to any of the matters enumerated in List II or List III of the seventh Schedule to the Constitution.
Ajmer legislature was thus given power to pass laws with respect to acquisition of property for purposes other than those of the Union.
In other words, it bad the power to make law to acquire property for the purposes of the State of Ajmer or for any other public purpose.
The question then is whether the Act was passed acquiring estates in the State of Ajmer for the purposes of the State of Active of where the title may vest.
The answer to this question to our mind can only be one; the Act was passed by the State legislature for acquiring estates within the State and it could only have been for the purposes of the State.
There is no reason to limit the meaning of these general words, namely, 'the purposes of the State ', by importing in them the idea of where the property would vest after its acquisition.
That the purposes for which the estates were acquired were purposes of the State of Ajmer would be quite clear from the fact that now that the State of Ajmer is part of the State of Rajasthan, the estates acquired under the Act have gone to Rajasthan and have not been kept by the Union on the ground that the title vested in the Union.
Therefore, as the estates were acquired in this case for the purposes of the State of Ajmer the Act would be within the competency of the Ajmer legislature as it falls within the plain words of entry 36 of List 11.
Jagirdars.
The contention on behalf of the petitioner in petition No. 33 of 1956 is that under the Act the word intermediary includes a jagirdar.
The Act also provides that the definitions in the Ajmer Tenancy and Land 487 Records Act, 1950 (Ajmer XLII of 1950), will be imported where the words used in it are not defined.
The word I jagirdar is defined in the Ajmer Tenancy and Land Records Act as a person to whom the revenue of any land has been assigned under a sanad issued by the Chief Commissioner before the commencement of the Ajmer Land and Revenue Regulation, l877 ; (see section 2 (15) ).
It is not in dispute that a sanad was issued to a predecessor of the petitioner before 1877 ; but it is urged that a jagirdar is merely the assignee of land revenue and so far as that assignment is concerned it may be said to have been acquired under the Act.
But the petitioner besides being an assignee of land revenue is also owner of land and that interest of his has not been acquired under the Act.
We are of opinion that there is no force in this argument.
The word I estate ' is defined in section 2(v) of the Act as having the same meaning as assigned to it in the Ajmer Land and Revenue Regulation, 1877.
The Ajmer Regulation does not define the word 'estate ' as such, but it has defined the word ' Malguzar ' as a person liable under section 64 for payment of the revenue assessed upon an estate, under section 2(d).
Further, section 64 provides that all persons who are bound by the agreement prescribed by section 61 and their successors ininterest shall, while they continue to be owners of land in the Estate to which such agreement relates, be jointly and severally liable for the payment of the whole amount of revenue assessed upon such estate.
The Ajmer Regulation also defines particular types of estates like ' Istimrari Estate ' and 'Bhum ' but the general meaning of the word 'estate ' under the Ajmer Regulation is an area of land separately assessed to revenue, which is payable by the holder of the estate.
I Intermediary ' as defined in section 2 (viii) of the Act is a holder of an estate and includes a jagirdar.
Under section 4 all the estates held by intermediaries Vest in the State Government on the issue of a notification.
Therefore, if the jagirdars are intermediaries, that is holders of estates, their estates will vest in the State Government under section 4 of the Act.
The distinction which the learned counsel for this petitioner draws between the 488 interest of the jagirdar as jagirdar and as land owner is in our opinion wholly unfounded.
A perusal of annexures B, C and D, filed by the.
petitioner himself, would make this clear.
Anexures B and C are sanads with respect to the jagirs held by the petitioner.
Entry in the remarks column of annexure IS begins with the words " Grant of this estate lasts. ".
Similarly, in annexure C the opening words in the remarks column are " The Grant is to the Dudhadhari for the time being.
No part of the estate is transferable by sale or mortgage. ".
Therefore, the grants themselves designated these jagirs as estates.
They were assessed to revenue, which was, however, remitted and the estates thus came to be known as revenue free jagirs and the estate holder was designated as jagirdar.
It was because of this remission of the land revenue that the word I jagirdar ' was defined in the Ajmer Tenancy and Land Records Act, 1950, as assignee of land revenue.
Annexures B and C also show that when the grants were made before 1877 a large part of the area covered by the grant was uncultivated.
Annexure D shows that disputes arose between the jagirdars and the Biswedars in these jagirs about these uncultivated lands, and one such dispute was decided as late as 1954.
In that judgment (annexure D) history of jagir tenure was traced and it was held that the jagirdar was the owner of uncultivated land in his jagir and not the Biswedar.
Therefore, the distinction which has been drawn by the learned counsel between the jagirdar as an assignee of land revenue based on the definition in the Ajmer Tenancy and Land Records Act, 1950, and the same person as the land owner is unfounded.
It appears that though the jagirdar may have been defined as assignee of land revenue because of the peculiar fact that in the case of a jagirdar there had been remission of land revenue by sanads granted before 1877, he was the proprietor of his jagir and the grantee of the estate given to him as jagir There is no question, therefore, of separating the interest of jagirdar as the assignee of land revenue from, his interest as the holder of jagir estate by virtue of a grant before 1877.
The petitioner therefore in petition 489 No. 33 of 1956 is the holder of the jagir estate and therefore his entire interest in the estate is liable to resumption under the Act.
In the Ajmer Regulations, (Vol.
H to L) at pp.
564 6, these two estates have been considered and their history is given, and they are called jagirs.
The history of jagirs in Rajasthan was considered by this Court in Thakur Amarsinghji vs State of Rajasthan (1), at p. 330 onwards, and the word I jagir ' was hold to connote all grants which conferred on the grantees rights in respect of land revenue.
In the case of these two jagirs also, as annexures B and C show, land revenue was remitted and they were granted as estates for particular purposes.
They are, therefore, clearly estates in view of the origin of the title of the holder of these estates who is called a jagirdar and therefore the State could take them over under section 4 of the Act.
There is no force in any of the points raised on behalf of the petitioners, and the petitions fail and are hereby dismissed with one set of costs to the contesting respondent.
Petitions dismissed.

Output:
Section 4 Of the Ajmer Abolition of Intermediaries and Land Reforms Act, 955, provided for vesting of all estates held by intermediaries, as defined in the Act, in the State from a date to be notified, and the petitioners who were affected thereby filed petitions under article 32 Of the Constitution of India challenging the validity of the Act and, in particular sections 8 and 38 of the Act on the grounds that (1) entry 36 of List 11 of the 479 Seventh Schedule to the Constitution gave power to the State legislature to acquire property for purposes other than the purposes of the Union, while the property acquired under the Act vested in the President and therefore the Union after its acquisition, and the Act was really for the acquisition of property for the purposes of the Union and could not have been passed by the, Ajmer legislature, (2) section 8 provided for retrospective cancellation of leases granted at a time when the land owner had a right to dispose of his property as he liked under article 19(1)(f) of the Constitution and there was no restriction on such right, and (3) section 38 which fixed a maximum rent was an unreasonable.restriction on the right of the land owner to let his holding.
It was also contended for some of the petitioners who were assignees of land revenue as also owners of land that, under the Act, an intermediary included a jagir and that as a jagirdar was merely an assignee of land revenue, only that assignment could be said to have been acquired under the Act.
Held, (1) that the purposes for which the estates were acquired were purposes of the State of Ajmer and, consequently, the Act was within the competency of the Ajmer legislature as it fell within entry 36 of List II of the Seventh Schedule to the Constitution, and it was not necessary to consider where the property should vest after acquisition in deciding the ambit of the competence of the legislature under the entry ; (2) that the provisions in section 8 of the Act which gave power to the Collector to cancel leases which were found to have been made in anticipation of legislation for abolition of intermediaries and which were, consequently, a fraud upon the Act, subserve the purposes of the Act and would, therefore, be an integral part of the Act, though ancillary to its main object, and were protected under article 31 A(1)(a) of the Constitution ; (3)that the intention of the Act was that the intermediaries who were allotted lands should cultivate them personally and the object of section 38 was to discourage them from letting the land and becoming a new kind of intermediaries, and, consequently, the section being an ancillary provision necessary for the purposes of carrying out the objects of the Act, was protected under article 31 A(1)(a) of the Constitution; and (4)that in view of the origin of the title of the holders of these estates who were called jagirdars, a distinction could not be made between jagirdars as assignees of land revenue and the same persons as land owners, and therefore, the State could take over the entire interest in the estate under section 4 Of the Act.