Input:
Special Leave Petition (Civil) No. 7213 of 1987.
From the Judgment and Order dated 19.5.
1987 of the Andhra Pradesh High Court in W.A. No. 672 of 1987.
P.P. Rao and P.P. Singh for the Appellant.
567 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition arises out of the judgment and order of the High Court of Andhra Pradesh.
Sree P.P. Rao, learned counsel for the petitioner submits that the order of release was bad because the authorised officer had no power to review the previous order nor he had the power to release the property of the landlady without even giving an opportunity to the petitioner.
In the facts of this case as noted by the High Court, we are unable to entertain these contentions.
We are unable to accept the contention that the Government cannot review its own order.
It is well settled law of this Court that in case of bona fide need subsequent events must be taken into account if they are relevant on the question of release or possession of the premises in question.
On a previous occasion the Government had declined to release the premises, later on .the representation made by the landlady the Government changed its decision.
The landlady had filed an application for releasing the premises in her favour, but the same was initially rejected on 25.9.1978.
Again the landlady made a further representation stating certain additional and fresh circumstances, that is to say, that her son was not allowing her to live with him in another house belonging to her.
The Government took into account the subsequent events and passed the order on 19.3.
1980 releasing the premises in favour of the landlady.
We do not see how to take cognizance of such subsequent events releasing the premises can be described an order in nullity in the facts of this case.
The next contention was that the petitioner was an allottee of the premises by virtue of his being in service but the petitioner was really a tenant of the premises in question.
The Government informed the petitioner to make alterna tive arrangements or seek accommodation.
The Government issued several notices on 24.11.1978, 22.5.1979, 12.7.1979, 27.9.1970 and 17.1.1980 to the petitioner and these facts have been stated and have also been taken note of by the High Court in the judgment under challenge.
In spite of the said notices given to the petitioner who was an allottee and who was informed about the requirement of the landlady, the petitioner did not choose to move out from the premises.
In the meantime, the petitioner has retired from service in 1986 and a long time has passed now.
In this case we do not think it can be said that the order was bad because the petitioner was initially not given an opportunity to show cause.
Actually the petitioner had enough opportunity.
In the premises, the special leave petition fails and we do 568 not find any ground to interfere with the order of the High Court.
Having regard to the facts that the petitioner had acquired government accommodation and he has stayed in the premises in question for sometime, we allow him to make alternative arrangement by 31.12.1987.
The order for evic tion will not be executed until 31.12.1987 provided the petitioner files an undertaking in this Court within four weeks from today to vacate and hand over the premises in question.
H.L.C. Petition dismissed.

Output:
The petitioner was an allottee of the premises held by the Government at the relevant time.
The landlady applied for release of the premises but the request was rejected.
However, upon a further representation made by the landlady stating that her son was not allowing her to live with him in another house belonging to her, the Government made an order releasing the premises in her favour and asked the petitioner to vacate the premises.
Several notices were also issued to him in that behalf.
The petitioner challenged the order of release contending that he had not been given an opportunity to show cause, and, that the Government had no power to review its earlier order rejecting the request; but the petition was dismissed by the High Court.
Dismissing the petition for Special Leave to appeal.
HELD: It is well settled law of this Court that in case of bona fide need, subsequent events must be taken into account if they are relevant to the question of release of possession of the premises.
The contention that the Govern ment cannot review its own order cannot be accepted.
When, in spite of the 'notices given to him, the petitioner did not choose to move out of the premises it cannot be said that he was not given an opportunity to show cause.
[567B C]


Input:
Civil Appeal Nos.2461 2463 of 1987.
From the Judgment and Order dated 7.8.1987 of the Rajasthan High Court in D.B.C. Writ Petition Nos.
1374, 1987 and 1453 of 1987.
Badri Das Sharma for the Appellants.
PG NO 495 Tapas Ray and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
What may 'appear ' to be equal treatment accorded in obeisance to the equality doctrine embodied in Article 14 of the Constitution in its application in 'reality ' may result in denial of equality and may.
accordingly be liable to be condemned for defying the equality doctrine.
This has been illustrated by the provision embodied in Ordinance No. 278 E (d)(ii) of the Ordinance of University of Rajasthan which provides for uniform addition of 5% marks to the students applying for admission to the post graduate course in any one of the five Medical Colleges provided the student has passed his final MBBS Examination from the College to which admission in post graduate course is sought.
The said provision has been held to be unconstitutional and in our opinion the conclusion reached by the High Court is right though the reasoning which has commended itself to this Court is somewhat different.
Three Writ Petitions were instituted in the Rajasthan High Court, (Jaipur Bench by the Writ Petitioners who sought admission to post graduate courses in the Colleges affiliated to the Rajasthan University.
There are five such Medical Colleges at five different centres in Rajasthan, viz Jaipur, Bikaner, Udaipur, Jodhpur and Ajmer.
It appears that for the purpose of securing admission to these Colleges the applicants seeking admission have to appear at a competitive examination called PMG.
The passing of this Examination is a pre condition for securing admission to the PMG course any one of the aforesaid five Colleges in Rajasthan.
The PMG competitive examination is 'common ' for all the five Medical Colleges.
There one syllabus and one combined examination is conducted by th University.
The successful candidates are entitled to addition of 5% marks in the percentage of aggregate marks by way of institutional preference if the concerned candidates had passed the final MBBS Examination.
conducted by the Rajasthan University.
A further addition of 5% of marks by way of institutional preference in the sense of preference dependent on the particular Medical College at which the concerned candidate has passed his final MBBS examination is also provided.
It is this college based institutional preference which has given rise to the present controversy.
Such preference is rooted in the impugned provision namely Ordinance 278 E(d) which deserves to be quoted: "(d) The total marks so obtained shall be converted into PG NO 496 percentage.
The percentage so obtained shall be increased as follows: (i) By 5 if the applicant passed the final M.B.B.S. Examination from the Rajasthan University.
(ii) By another 5 if the applicant passed the Final M.B.B.S. Examination from the same institution for which selections are being made.
" The Writ Petitioners contended that this provision violated the equality principle enshrined in Article 14 of the Constitution of India and was accordingly unconstitutional.
It appears that while each of the five Medical Colleges in Rajasthan is conducting post graduate courses in specified specialities and super specialities, the Doctors who have graduated from all the Medical Colleges in Rajasthan by and large consider admission to post graduate courses at SMS College at Jaipur as most advantageous.
In other words securing admission in post graduate course at Jaipur in SMS College is considered to be achievement and the courses at Jaipur are the most sought after courses.
The reasons underlying this keenness to secure admission in Jaipur College are understandable inasmuch as: (i) there are many more seats available for PG courses; and (ii) there are many more specialities available at the Jaipur College as compared to other Colleges; A Tabular statement reflecting the positions of seats in the five Medical Colleges may best scrutinized: Subject S.M.S. S.N.
R.N.T. S.P.
J.I.N. Total Medical Medical Medical Medical Medical College College College College College Jaipur Jodhpur Udaipur Bikaner Ajmer 1.Genl.
surgery 17(4) 10(2) 8(2) 8(2) 8(2) 51(12) 2.
Medicines21(5) 9(2) 10(3) 10(2) 11(3) 61(15) 3.
T.B.&C.D. 2(1) 1(0) 1(0) 0(0) (0) 4(1) 4 Skin & V.D. 2(()) 1(1) 0(0) 0(0) 0(0) 3(1) PG NO 497 5 Psychiatry 3(1) 0(0) 0(0) 11(0) 0(0) 4(1) 6.
&Obst.
18(4) 8(2) 8(2) 8(2) 8(2) 50(12) 7.
Medicine11(3) 5(1) 4(1) 4(1) 4(1) 28(7) 8.
Anaesthesia 11(3) 4(1) 4(1) 4(1) 4(1) 27(7) 9.Radio Diagnosis 2(0) 2(1) 2(1) 2(1) 2(0) 10(3) 10.
Radio Therapy 1(1) 0(0) 0(0) 1(0) 0(0) 2(1) 11.
E.N.T. 2(0) 1(1) 1(0) 1(0) 1(1) 6(2) 12.
Opthalmology 6(1) 2(0) 2(1) 2(0) 2(1) 14(3) 13.
Orthopaedics 8(2) 2(1) 2(0) 2(1) 2(0) 16(4) 14.
Pathology 4(1) 1(0) 1(0) 1(1) 1(0) 8(2) 15.
Microbiology 2(1) 1(0) 1(1) 1(0) 1(0) 6(2) 16.
P.S.M. 2(0) 1(0) 1(0) 1(1) 1(0) 6(1) 17.
Physical 1(0) 0(0) 0(0) 0(0) 0(0) 1(0) Medicine & Rehabilitation 18.
Anatomy 1(1) 0(0) 0(0) 0(0) 0(0) 1(1) 19.
Physiology 0(0) 1(0) 0(0) 0(0) 0(0) 1(0) 20.
Bio Chemistry 0(0) 0(0) 1(0) 0(0) 0(0) 1(0) 21.
Pharmocology 0(0) 0(0) 0(0) 1(0) 0(0) 1(0) 114(28)49(12) 46(12) 47(12) 45(11) 301(75) B. DIPLOMA I II III IV V VI D .A. 6(1) 0 6(2) 6(1) 0 1(4) DCH.
6(2) 0 6(1) 6(2) 0 1(5) D.P.H. 6(1) 0 0 0 0 6(1) D.G.O. 6(2) 0 6(1) (0) 0 12(3) D.M.R.D. 6(2) 0 (0) (0) 0 6(2) Total: 30(8) 0 18(4) 12(3) 0 60(1) PG NO 498 Note: The figures shown in bracket are the seats reserved for being filled up on all India basis in the year 1988.
The facility for the specialities from serial No. 18 to 21 i.e. Anatomy, Physiology, Bio Chemistry and Phannacology, are available in all the five Medical Colleges in Rajasthan.
But from the year 1988, the facility in these specialities will be provided by rotation.
Now it has to be realized that the aggregate marks for all subjects put together is 2750.
5% of these marks would work out to 137.5 marls.
In the result a candidate from the same College will have an advantage of 137 5 marks over candidates from other Colleges.
In Medical courses where there is intense competition and candidates run neck to neck so often with a difference of a mark or two.
a difference of 137.5 marks by way of College wise institutional preference would virtually make a mockery of the merit criteria.
A candidate, say from Jaipur College, who secures 137.5 marks less than a candidate from Jodhpur, Bikaner, Udaipur or Ajmer will get admission in P. Course at Jaipur in preference to the other more meritorious candidates merely because he passed the M.B.B.S. ;Examination at Jaipur even though all of them secured their marks at the identical competitive examination to all the Collages.
It needs no argument that article 14 is seriously shattered.
Statements filed by the parties in this Court further go to show that some disciplines are available only in particular Colleges and not in other Colleges.
For instance: 1. M.D. in Physical Medicine and Rehabilitation is available only in S.M.S. College.
Jaipur.
T.B. and C.D. ' is not available in Ajmer Medical College.
`Skin and V.D. ' is not available in Udaipur and Ajmer Colleges.
`Psychiatry ' is available only in Jaipur and Bikaner Colleges and not in others 5.
M.D. in 'Radio therapy ' is available only in Jaipur and Bikaner and not in other Colleges.
An analysis of the data reflected in the aforesaid statement and its impact on the fortunes of the students PG NO 499 aspiring for the Post Graduate courses reveal: (i) that a student passing his final degree examination in MBBS from Jaipur would steal a march over the students passing from the remaining four Colleges for with 5% weightage a student from Jaipur would have a far better chance of securing admission in a post graduate course at Jaipur inasmuch as there are as many as 114 seats at the Jaipur Medical College as compared to the number of seats ranging between 45 and 49 in each of the remaining Medical Colleges regardless of the superior merits of students from other colleges.
(ii) a student passing his final degree examination in M.B.B.S. from Jaipur aspiring for admission in P.G. course would have a far better chance of securing admission in the subject of his choice vis a vis students from all other Colleges inasmuch as in each subject the number of seats in the Jaipur College is much larger than in any of the remaining Colleges regardless of his superior merits.
(iii) a candidate from any of the four Colleges other than Jaipur College would have practically no chance of securing admission in certain disciplines such as: (a) Physical Medicine and Rehabilitation (b) Anatomy, (subject to rotation after 1988) (c) Radio therapy and (d) Pychiatry etc.
regardless of his superior merits.
(iv) A candidate with special aptitude for a particular discipline would not get admission in PG course in that discipline unless he belongs to Collage in which the particular discipline is available regardless of his superior merits.
The merit position in relation to the students would also undergo a vast change as is revealed by the tabular statement reproduced hereunder: PG NO 500 Sl.
No. Name Merit Position with 5% without 5% Institutional Institutional weightage weightage S1.No.
Name Merit Position 1.
Dr. Ashok Kumar GuPta 207 171 2.
Dr. Rajeev Ahuja 226 209 3.
Dr. Ashwani Kumar Singh 201 162 4.
Dr. Ishwar Das 177 131 5.
Ratan Lal Tiwari 215 181 6.
Dr. Madhu Sanwal 97 45 The fortunes of the candidates would thus undergo a sea change.
Those who are more meritorious having secured more aggregate marks than others would not get admission to PG courses anywhere in Rajasthan, whereas those with lesser merits would get admission by reason of the 5% College wise preference.
To take the case of the appellants, they having secured aggregate marks of 1650, 1638, 1624, 1617 and 1613 have not been able to secure admission in any discipline.
As against this candidates have secured much less marks already secured admission in one or the other of the 5 Medical Colleges.
In order to illustrate the point, the tabular statements reproduced hereinbelow may be glanced at: Medical College Aggregate marks of Discipline last candidate allotted Jodhpur 1548 M.D. (Anaesthesia) Udaipur 1626 M.S. (Surgery) Jaipur 1602 M.D. (Anaesthesia) Bikaner 1622 M.D. (Microbiology) Statement showing list of candidates, less meritorious (that the appellants)who have secured admission: PG NO 501 College Aggregate marks Discipline allotted Jodhpur 1610, M.D. (Medicine) 1605 1601 (Skin & V.D.) 1606, 1595, 1590 1576, 1577 1582, 1570, 1548 M.S. (Surgery) M.S. (Orthopaedics) M .D .
(Anaesthesia) 1638 M . D .
(Medicine) 1637, 1635, 1626 M.D. (In TB & CD,) 1629, 1610, 1604 Psychiatry (Skin & V.D.) M.S. (Surgery) 1620 M . S .
(Orthopaedics) 1617, 16()3, 1602 M.D. (Anaesthesia) What emerges from the above statements is that while one of the appellants who has secured 1650 marks in the common competitive examination has not been able to secure admission in P.G. Course in any College in Rajasthan, a PG NO 502 candidate who secured about 100 marks less (1548 marks) in the very same examination has been able to secure admission, the rest of the appellants havr not been able to secure admission anywhere though they have demonstrably secured more marks and are more meritorious than The aforesaid 22 persons.
This analysis exposes the extremely unfair and unjust impact of the impugned rule.
This factor coupled with the four factors highlighted earlier leave no room for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5 weightage to the students of each of the five Medical Colleges, in actual operation it bring, about oppressive and obnoxious inequality.
Once the veil of 'apparent equality is pierced.
to the offensive 'reality '.
Such being the position the constitutional validity of the impugned rule cannot be sustained.
It has to be buried unceremoniously as unconstitutional being violate of article 14 of the Constitution of India.
The High Court has struck down as unconstitutional the impugned provision embodied in note (d)(ii) of Ordinance 278 E mainly on the ground that coupled with the institutional preference accorded under clause (i) it would virtually amount to making 100% reservation in farour of the students of the Rajasthan University in the sense that no other student of any other University would have any reasonable chance to secure admission to these courses.
relying in the principle enunciated in Nidamarti Mahesh Kumar vs State of Maharashtra & Ors., ; 3 SCR 1302, the reasoning is reflected in the following passage extracted from paragraph 25 of the judgment under appeal: "Thus after having given 5% weightage on the ground of institutional preference that a candidate has passed his final MBBS Examination from the University of Rajasthan, further 5% weightage on the ground that he has passed his MBBS final examination from the Medical College where he seeks admission.
in Post Graduate course, is unreasonable able and arbitrary and does not stand the touchstone of Article 14 of the Constitution.
If ]0% weightage is given as aforesaid it will come to 275 marks and with this increase in marks no candidate from University other than University of Rajasthan can get admission to Post Graduate course in any one of the medical colleges.
It is against the equality clause as it amounts to cent per cent reservation as 105 weightage in admission to Post Graduate course to a student, 5% weightage on the University basis PG NO 503 and 5% on the institutional basis, amounts to total exclusion of candidates of other Universities.
We have already referred to the admissions for the years 1986 and 1987 and at the cost of repetition we may say that a look at Schedules `A 'and `B ' regarding admissions in SMS Medical College, Jaipur in Post Graduate courses for the years 1986 and 1987 respectively will show that not a single candidate from the University other than University of Rajasthan could seek admission. " Since however a number of seats are now (since l988) reserved in each College for candidates on an All India basis as disclosed by the tabular statements reproduced in the earlier part of this judgment.
we prefer to rest our decision on the reasoning indicated earlier.
These, are the reasons which impelled us to pass the final order as under on July 21 1988: "ORDER I The appeals fail and are dismissed.
II Ordinance 278 E(d)(ii) of the Ordinances of the University of Rajasthan is declared as unconstitutional and quashed.
III Admissions to the Post Graduate Degree Courses in all the Medical Colleges at all centres in Rajasthan shall hereafter be made inaccordance with the decision of the High Court rendered on August 7, 1987 in the Writ Petitions giving rise to the present appeals which is hereby confirmed.
IV Future vacancies including unfilled vacancies to the Post Graduate Degree Courses in all the Medical Colleges in Rajasthan shall hereafter be filled on the basis that Ordinance 278 E(d)(ii) is invalid provided however that those students who have been admitted to Post Graduate PG NO 504 courses pursuant to the interim order of this Court will not be disturbed and will be permitted to complete their courses.
Unfilled vacancies may be filled in accordance with and in the light of this order even at this juncture if it can be so done.
VII Reasons will follow.
VII There will be no order as to costs.
" R.S.S. Appeal dismissed.

Output:
The respondents had sought admission to post graduate courses in the five medical colleges affiliated to the Rajasthan University through a competitive examination which was common for all these five colleges.
They were not able to secure admission in any discipline even though they had secured more marks as compared to the successful candidates who had been granted additional marks on the basis of Ordinance 278 E(d)(ii) of the Ordinance of University of Rajasthan.
Under this proviso the successful candidates were entitled to a uniform addition of 5% marks in the percentage of aggregate marks if they had passed the final M.B.B.S. examination from the same institution for which selection was being made.
The respondents challenged this provision as violative of the equality principle enshrined in Article 14 of the Constitution.
The High Court struck down as unconstitutional the impugned provision embodied in note (d)(ii) of Ordinance 278 E. Dismissing the appeal, it was, HELD: (1) The aggregate marks for all subjects put together is 2750.
5% of these makrs would work out to 137.5 marks.
In the result, a candidate from the same college will have an advantage of 137.5 marks over candidates from other PG NO 493 PG NO 494 colleges.
In medical courses where there is intense competition and candidates run neck to neck so often with a difference of a mark or two, a difference of 137.5 marks by way of college wise institutional preference would virtually make a mockery of the merit criteria.
[498C D] (2) This factor coupled with other factors leave no room for doubt that while on the face of it the impugned rule appears to extend or accord equal treatment of 5% weightage to the students of each of the five Medical College, in actual operation it brings about oppressive and obnoxious inequality.
Once the veil of apparent equality is pierced, the ugly inequality stares one in the eyes which are opened to the offensive 'reality ' [502B C] (3) Admission to post graduate courses st SMS College at Jaipur being considered as most advantageous, a candidate from Jaipur College will get admission in P.G. Course at Jaipur in preference to the other more meritorious candidates merely because he passed the M.B.B.S. examination at Jaipur even though all of them secured their marks at the indentical competitive examination to all the Colleges.
It needs no argument that Article 14 is seriously shattered.
[498D] (4) What may 'appear ' to be equal treatment accorded in obeisance to the equality doctrine embodied in Article 14 of the Constitution in its application in 'reality ' may result in denial of equality and may accordingly be liable to be condemned for defying the equality doctrine.
[495B] (5) Such being the position the constitutional validity of the impugned rule cannot be sustained.
It has to be buried unceremoniously as unconstitutional being violate of article 14 of the Constitution of India.
[502C D] Nidamarti Mahesh kumar vs State of Maharashtra, AIR 80 SC 1362 (1980) 3 SCR 1302, referred to.


Input:
Appeal Nos.
86 to 89 of 1965.
Appeals by special leave from the judgment and order, dated October 17, 1963 of the Allahabad High Court in section T. Ref.
No. 109 of 1956.
A. V. Viswanatha Sastri and B. N. Kripal, for the appellant.
N. D. Karkhanis and O. P. Rana, for the respondent, K. K. Jain, for intervener.
The Judgment of the Court was delivered by Sikri, J.
These four appeals by special leave are directed against the judgment of the Allahabad High Court in a Sales Tax Reference made by the Judge (Revisions), Sales Tax, Uttar Pradesh, Lucknow, on being directed to do so by the High Court under section 11 of the Uttar Pradesh Sales Tax Act, 1948, hereinafter referred to as the Act.
The question referred was as follows : "Whether in law the revising authority was right in holding that the sales in dispute were not for delivery outside Uttar Pradesh and that the applicant Was not entitled to a rebate under sec.
5 of the Act.
" The question was referred in the following circumstances.
The appellant, hereinafter referred to as the assessee mills, carries on the business of manufacturing and selling sugar and is registered as a dealer under the provisions of the Act.
During the previous year relevant to the Assessment Year 1948 49, the assessee company had sold sugar to parties who carried on business outside Uttar Pradesh and also delivered the same outside Uttar Pradesh.
It also sold sugar to parties who carried on business inside Uttar Pradesh but the sugar was despatched to stations outside Uttar Pradesh in compliance with the instructions issued by the buyers.
The assessee mills submitted an application.under section 5 of the Act in form VII, prescribed by, the Uttar Pradesh Sales Tax (Temporary) Rules, 1948, claiming 50% rebate on the sales of sugar delivered outside Uttar Pradesh.
The Sales Tax Officer allowed rebate in respect of the sales of sugar to parties who carried on business outside Uttar Pradesh but rejected the claim for the sales which were made to parties carrying on business inside Uttar Pradesh.
In respect of the assessment year 1948 49 there were four assessment orders covering each quarter of the year,, the, 47 first quarter being April 1948 to July 1948.
Section 5 of the Act reads as follows "Sales of certain goods for delivery outside the State In respect of such manufactured goods as may be notified by the State Government and subject to such restrictions and conditions as may be prescribed, a rebate of one half of the tax levied on sales of such goods for delivery outside the Uttar Pradesh shall be allowed if such goods are actually so delivered.
" In exercise of the powers conferred by section 5 of the Act, the Governor was pleased to order that rebate of one half of the tax levied on sales of certain goods including sugar manufactured in Uttar Pradesh for delivery outside Uttar Pradesh shall be allowed if such goods were actually so delivered.
It appears that this notification was modified on March 30, 1949, but we are not concerned with this modification.
The Sales Tax Officer dealt with the question at issue in his order in respect of the quarter ending March 31, 1949, in detail and he was of the view that if property passed from the seller to the purchaser in Uttar Pradesh, section 5 and the notification issued under it could not apply.
The assessee mills then filed four revision applications before the Judge (Revisions) Sales Tax.
The Judge (Revisions) disposed of the four applications by two orders, first dated February 1, 1950, and the second dated December 5, 1950.
He held that "the words 'sales of such goods for delivery outside U.P. clearly show that the intention of the framers of the act was to allow a rebate only in cases in which the goods are sold subject to the condition that they would be delivered outside U.P.
It is also clear that section 5 contemplates only one buyer who purchase the goods and also take their delivery outside U.P.
In other words the party who buys the goods and the party who takes the delivery must be one and the same.
It is not disputed that the sales of sugar in respect of which the claim has been disallowed were in favour of one party and delivery was taken by another party outside U.P.
The party after buying the sugar under a contract of sale had the goods despatched outside U.P. by the Mills to another party outside U.P." He added later that "on a true construction of section 5 rebate will be permissible only if delivery is taken outside U.P. by the same party which purchased the sugar from the mills." Then 48 on the facts he held that the selling agents, Tandon Bros., who entered into a contract with the assessee mills for sale of the goods were really the buyers and although the goods were despatched outside Uttar Pradesh in accordance with the despatch instructions of some contract arrived at between Tandon Bros., and the party to which the goods were ultimately delivered, the assessee mill had not entered into the contract with the parties to which the goods were despatched outside Uttar Pradesh.
He further repelled the argument that despatch instructions formed part of the contract.
The assesses mills then filed four applications under section 1 of the Act, but the Judge (Revisions) Sales Tax rejected the applications on the ground that no question of law arose.
The High Court, however, directed the Judge (Revisions) to state a case under section 11 of the Act.
A consolidated statement of the case was referred.
The Judge (Revisions) drawing up the statement of the case was not the Judge (Revisions) who had disposed of the revision applications.
In the statement of the case certain further facts were given and those are as under "The applicants (assessee mills) were members of the Indian Sugar Syndicate Ltd., and they were entitled to send sugar under the orders of the Syndicate through some selling agents of their own.
M/s. Tandon Bros., were the selling agents of the Mills.
It was through them that the sales had been made to buyers outside U.P.
The goods were despatched outside U.P. under the instructions received from the buyers through the selling agents.
The delivery of the goods was made outside U.P.
It is on the basis of these facts that the applicants (assessee mills) claimed that the sales had been made for delivery outside U.P." The standard contract form prescribed by the Indian Sugar Syndicate has been annexed to the case and the following terms are relevant : "AN AGREEMENT made this Sixteenth day of October 1948 between the AMRITSAR SUGAR MILLS CO. LTD.
ROHANA KALAN (hereinafter called "the Seller") and Tandon Brothers New Mandi Muzaffarpur (hereinafter called "the Buyee") for the sale of the following goods by the Seller to the Buyer upon the following terms and conditions 49 A B C D E F Factory Description Price per Md. ofQuantity Period(s) Re (short) of quality 40 Srs.
82 2/7 lb. of marks Name F.O.R. Factory delivery Station Ex Factory.
Rohana Average colour Rs. Thirty Six Bags 4,000 Ready Mills.
not lower than annas two & I.S.S. No. 127 pies three only.
Average grain not Each of pack finer than I.S.S. ing 2/30.
No. D. or I. 36/2/3 2.
Delivery is to be made F.O.R. Rohana Kalan station, all terms and conditions of the Railway (torn) to be binding on the Buyer.
The goods shall be deemed to have been delivered (a) when tendered Ex Factory godown, (b) when put on F.O.R. at Factory Station or (c) when tendered for carriage by rail at the said station, and in case of delay in accept (torn) by the Railway after such tender the said goods shall be deemed to be held by the Seller on account of the Buyer until they are put on rail.
When the goods are received by Railway, all the terms and conditions of the Railway shall be deemed to be accepted by the buyer.
Tender to the Railway for carriage shall be deemed to have been made when a (torn) carriage or a Forwarding Note has been given to the Station Master of the Station.
The seller shall not, (torn) circumstances whatsoever, be responsible for non despatch, or refusal to despatch or delay in despatch or any (torn) mistake in despatch by the Railway.
Where (after tender as aforesaid) any delay in despatch occurs, the Buyer shall (torn) delivery of the goods without any claim against the Seller on account of such delay or the consequence thereof (torn) delay in despatch is due to non supply of wagons or due to booking restrictions, the Seller, shall, if required by the (torn) obtain from the factory a letter stating the cause of the delay.
Where owing to restriction of whatsoever nature imposed by Carriers on despatches, Seller is unable to despatch according to the route requested by the Buyer, then Seller shall have the right, after giving to the Buyer 50 three days time to despatch by the cheapest available route at Seller 's sole discretion to the destination required by the original despatch instructions.
Within the period of three days above mentioned, Buyer may change the destination provided the (torn) despatching instructions are capable of immediate execution.
In the case of despatch by road, river or other transport any combination thereof, all the terms and conditions of the Carriers are be a binding on the Buyer, and tender to Carrier shall be a good delivery within the meaning of the clause.
The buyer is to give the Seller despatching instructions in accordance with the above schedule, in the case (torn) ready sales within ten days from the date hereof when the quantity is less than 1500 bags, and within fifteen days when quantity is 1500 bags or more; and in the case of forward sales, not less than fourteen days prior to the expiry of the (torn) for delivery of the goods as provided in the above Schedule.
When goods are for delivery in instalments the times (torn) clause provided shall apply to the despatching instructions for each instalment.
The sugar will be despatched at (torn) Risk unless the buyer shall give to the Seller instructions to the contrary in the Despatching Instructions.
The despatching instructions to be given as aforesaid shall be such as the Seller will then be in a position to carry (torn) having regard to restrictions on booking, availability of wagons, transshipment difficulties and other matters.
The despatch (torn) instructions once given shall not ordinarily be amended or altered and they can be altered or amended only with the consent of the seller and before the goods have left the factory, the Seller is not in any way responsible for any delays that may arise through error or mistake in the despatching instructions sent by the buyer.
If the Buyer fails to give despatching instructions within the time and in the manner aforesaid he will be deemed not to have given any despatching instructions at all.
No complaint as regards description, quality or condition of any consignment will be admitted unless the Buyer has complied with Clause 3 thereof and has paid to the Seller the full price and all overdue or other 51 charges and unless the complaint is made in writing to the Seller within three days from the arrival of such consignment at destination, the date of such arrival being deemed to be the date of arrival entered in the Books of the Railway Co., Steamer Co., Carrier or Port Authorities.
The completion of Risk Note form A as required by the Railway authorities at certain seasons of the year shall not be construed as adverse remarks as to the condition of the goods or its packing.
If any complaint, as to quality condition quantity or weight is referred to arbitration and an allowance is awarded in thereof, the Buyer shall retain the goods and such allowance shall be deducted from the price and be refunded by the Seller.
" The High Court, in view of its finding that the delivery was contracted to be made ex factory, the factory being within the State of Uttar Pradesh and the contract not containing any condition requiring the assessee to deliver the goods outside Uttar Pradesh, held that rebate was not admissible under section 5.
The High Court said that its detailed reasons were contained in its, judgment in Lord Krishna Sugar Mills vs Commissioner Sales Tax, II.P.(1) In that case Desai, C.J., held that the obligation to deliver goods outside Uttar Pradesh must arise only from a term in the contract, and in the absence of such a term it could, not be said that the goods were to be delivered outside Uttar Pradesh.
The learned Chief Justice further observed as follows A term in a contract that despatch instructions would be furnished later necessarily means that the seller undertakes to comply with them.
If under a contract itself something is to be settled later, what is settled later becomes as much binding under the contract itself as the terms already settled under the contract.
Still, I do not think that the sales in those cases in which the contracts provided for despatch instructions to be given later became sales for delivery outside Uttar Pradesh merely because the despatch instructions were that they should be despatched outside Uttar Pradesh.
All that can be said is that the sales were for "delivery in accordance with despatch instructions" and a sale for "delivery in accordance with despatch instructions" is not necessarily a sale for "delivery outside Uttar Pradesh." (1) Sales Tax Reference No. 263 of 1954 judgment delivered on, March 19, 1963. 52 He seemed to be of the view that in order to come within the expression "delivery outside Uttar Pradesh ' it must be one of the terms settled at the time of the formation of the contract itself that the goods will be delivered outside Uttar Pradesh, and if this is not so settled and all that is settled is that they will be delivered in accordance with despatch instructions, the sale would neither be a sale for delivery outside Uttar Pradesh nor a sale for delivery inside Uttar Pradesh.
He was clearly of the view that despatch instructions were not a part of the contract when it was formed and did not get incorporated into it or become a part of it when given.
Pathak, J., in a concurring judgment, was of the view that it must be in the contemplation of the parties at the time of entering into the contract that the goods which were the subject of sale must be delivered outside Uttar Pradesh.
He observed that "there is a distinction between settling and determining the terms of a contract and complying with the terms 'of that contract.
The former relates to the formation of the contract, the latter to its execution.
" The first question which arises in these appeals is whether the word "delivery" in the expression "sales of such goods for delivery outside Uttar Pradesh" occurring in section 5 of the Act means actual delivery or constructive delivery.
If it means constructive delivery then there is no doubt that on the facts as stated by the Judge (Revisions) the contract provided for constructive delivery inside Uttar Pradesh and the assessee mills would not be entitled to rebate under section 5.
The Madras High Court had occasion to consider a similar question in India Coffee and Tea Distributing Co. Ltd., vs The State of Madras.(1) It held that the word "delivery" in section 5 of the Madras General Sales Tax Act, 1939, which exempts from taxation sales of tea "if the sale is for delivery outside the State and delivery actually was made" did not include anything which the law deemed "delivery" but was restricted to physical delivery of the thing sold.
In coming to this conclusion, Subrahmanyam, J., observed : "In deciding whether the word "delivery" in section 5 (v) includes delivery in law, we have to have regard to the objects of the Legislature in enacting section 5 (v).
The object obviously was the promotion of the export of tea.
The Legislature intended that where tea was (1) 10 S.T.C. 359.
53 exported from the State for being delivered outside the State, the sale which resulted in such export should be exempt from taxation. 'Mat object would not be wholly achieved if we hold that delivery of documents of title in the State of Madras would make the sale liable to taxation.
" We agree with the view expressed by the Madras High Court.
It seems to us that the object underlying section 5 is to encourage export of goods manufactured in Uttar Pradesh and notified under section 5.
The course of trade adopted by the Indian Sugar Syndicate Ltd. and the assessee mills shows that if the word "delivery" is interpreted to mean 'constructive delivery ' very few 'export sales ', if we may use the expression, would enjoy rebate under section 5.
As long as the contract evinces an intention to export and actual delivery is given to effectuate that intention the object of the Legislature to ensure that only real 'export sales ' enjoy the rebate would be fulfilled.
It seems to us that in the context of section 5 the word 'delivery ' occurring in section 5 means 'actual delivery '.
The next question that arises is whether the sales by the assessee mills were for actual delivery outside Uttar Pradesh.
The answer to this problem depends on the answer to the question whether despatch instructions contemplated by clause 2 and clause 3 of the contract were part of the contract entered into by the assessee mills.
It seems to us that they were.
The contract by the assessee mills was to actually deliver at a place to be communicated.
This view is reinforced by what is contained in clause 11 of the contract.
This clause contemplated a destination in spite of constructive delivery having been contracted to be made at Rohana Kalan Station.
Further, the contract was not to actually deliver at some place to be chosen or assented to by the assessee mills but at any place without restrictions.
The contract required nothing more for completion than a mention of the place.
When the despatch instructions were given, it was not a case of performing the contract but specifying a term of the contract.
If the place of actual delivery had been specified and it was a question merely of communicating the route by which the goods were to be delivered this would perhaps related the mode of performance of the contract.
But communication of the place where actual delivery is to be given does not relate to the mode of performance but formation of the contract.
It seems to us, with respect, that the High Court reared in relating despatch instructions to the mode of performance of the contract.
54 In the result we hold that the assessee mills is entitled to rebate under section 5.
We set aside the judgment of the High Court and answer the question as follows : "The revising authority was not right in holding that the sales in dispute were not for delivery outside Uttar Pradesh.
Further, the applicant was entitled to rebate under section 5 of the Act.
" The appellant will have his costs incurred in the High Court and here.
One hearing fee.
Appeal allowed.

Output:
The assessee sugar mill sold sugar to parties who carried on business inside the State of Uttar Pradesh, but the sugar was despatched to stations outside the State of Uttar Pradesh and delivered to another party in compliance with the instructions issued by the buyers.
Under the contract entered between the assessee and the buyer, the assessee was to deliver the sugar at places to be communicated by the buyer.
The assessee mill claimed rebate on these sales under section 5 of the Uttar Pradesh Sales Tax Act, 1948.
The Sales Tax authorities rejected the claim. 'Me High Court held that the rebate was not admissible under section 5 because the contract did not contain any condition requiring the assessee to deliver goods outside Uttar Pradesh and because the despatch instructions.were not a part of the contract when it was formed and did not get incorporated into it or become a part of it when given.
In appeal to this Court.
HELD : (i) In.
the context of section 5 of the Act the word 'delivery ' occurring therein means 'actual delivery '.
The object underlying section 5 is to encourage export of goods manufactured in Uttar Pradesh and notified under section 5.
The course of trade adopted by the buyers and the assessee shows that if the word 'delivery ' is interpreted to mean 'constructive delivery ' very few 'export sales ' would enjoy rebate under section 5.
As long as the contract evinces an intention to export and actual delivery is given to effectuate that intention the object of the legislature to ensure that only real 'export sales ' enjoy the rebate would be fulfilled.
[53 B D] Lord Krishna Sugar Mills vs Commissioner of Sales Tax, U.P. S.T. reference No. 263/54 dated March 19, 1963, disapproved.
India Coffee and Tea distributing Co. Ltd. vs The State of Madras 10 S.T.C. 359, approved.
(ii)The sales by the assessee were for actual delivery outside Uttar Pradesh.
The despatch instructions contemplated by the contract entered into by the assessee, were part of the contract.
The contract contemplated a destination in spite of constructive delivery having been contracted to be made at the station where the assessee mill was situated.
Further the contract was not to actually deliver at some place to be chosen or assented to by the assessee mill but at any place without restrictions.
The contract required nothing more for completion than a mention of the place.
when the despatch instructions were given, it was not a case of performing the contract but specifying a term of contract.
[53 EG] 4 6


Input:
Appeal No. 936 of 1963, Appeal from the judgment and order dated May 31, 1963, of the Punjab High Court in First Appeal from Order No. 2/3 of 1963.
Purshotham Trikamdas, Rajinder Nath Mittal , R. B. Datar, V. Kumar.
B. P. Singh and Naunit Lal, for the appellant.
G.S. Pathak, Bawa Shiv Charan Singh, Hardev Singh, Rajendra Dhawan, Anand Prakash and Y. Kumar, for respondent No. 1. 752 February 12, 1964.
The Judgment of the Court was, delivered by: SHAH, J.
At the general elections held in February 1962 five candidates contested the election to the House of the People from the Jhajjar parliamentary constituency.
On February 27, 1962 the appellant Jagdev Singh Sidhanti was declared elected.
Pratap Singh Daulta who was one of the candidates at the election then filed a petition with the Election Commission praying, inter alia, that the election of the appellant be declared void on the ground that the appellant Sidhanti his agents, and other persons with his consent,.
had committed certain corrupt practices in connection with the election.
Daulta stated that the appellant Sidhanti was set up as a candidate to contest the election by the Harding Lok Samiti, that the appellant and six other persons Piare Lal Bhajnik, Ch.
Badlu Ram, Pt.
Budh Dev, Prof. Sher Singh, Mahashe Bharat Singh and Achilles Bhagwan Dev who were leaders and active workers of the Gurukul Section of the Arya Samaj had organised a political movement called "the Hindi agitation" in 1957 the real object of which was to promote feelings of enmity and hatred between the Sikh and the Hindu communities in the State of Punjab " on the ground of religion and language" to promote their prospects in the general elections to be held in 1962.
and for that purpose they held meetings in the Hariana region of the Punjab and appealed to the electorate to vote for Sidhanti 'on the ground of his religion and language".
and used a religious symbol a flag called "Om Dhwaj" in, all these meetings, that the appellant himself made similar appeals to the electorate and appealed to them to refrain from voting for Daulta who was a sitting member of the House of the, People from the constituency stating that he Daulta was an enemy of the Arya Samaj and of the Hindi language, that during the election campaign fifteen meetings were held between December 10, 1961 and February 18, 1962 and at all these meetings appeals were made to the electorate on the ground of religion and language of Sidhanti, and attempts were made to, promote feelings of enmity and hatred between Sikhs 'and Hindus of the Punjab.
Allegations about undue influence on the voters in the exercise of their free electoral right were also made in the petition, and details of these 753 alleged corrupt practices were furnished in the schedule annexed to the petition.
Sidhanti denied that the six persons who were named as his agents and supporters ever acted as his agents in his elec tion campaign and submitted that they were merely interested in the success of the candidates set up by the Hariana Lok Samiti and acted throughout "on their own and not as his agents".
He also submitted that the Hariana Lok Samiti had no connection with the Arya Samaj, it being a political organization started by Prof. Sher Singh who was an impor tant political leader in the Hariana region.
Sidhanti admitted, that he had participated in the meetings to canvass votes, but claimed that he was not responsible for convening the meetings or for the speeches made by others in those meetings, that the Om flag was not a religious symbol and denied that it was used on any occasion by him or his agents or the six persons named by Daulta in his petition, except Bhagwan Dev who was accustomed "throughout his career" to carry a pennant with "Om" and his own name inscribed thereon on his motor vehicle, but carrying of such a flag or pennant on Bhagwan Dev 's vehicle during the election was not with his (Sidhanti 's) consent and that it did not amount to commission of a corrupt practice as defined in the Act, that the residents of Hariana area were mainly Hindi speaking, but the Government of Punjab had made Punjabi language in Gurmukhi script a compulsory subject at various levels of school education and this gave rise to a wide spread agitation against the policy of the Government, that to resist the implementation of the policy and the programme of the Government in the administrative, economic and developmental spheres and to mitigate the hardships of the residents of the Hariana region and to secure redress of their grievances the Hariana Lok Samiti was formed.
, and an appeal to the electorate to secure a reversal of the policies and programme of the Government was not.
it was submitted, an appeal on the ground of language or religion and did not amount to a corrupt practice within the meaning of section 123 of the Representation of the People Act, 1951.
The Tribunal held, inter alia, that the "Om flag" was not a "religious symbol" of the Arya Samaj, that no satisfactory proof was adduced that Om flag had been used as a 134 159 S.C. 48 754 symbol of Arya Samaj or that an appeal to secure votes with the aid of the flag was made to the electorate by Sidhanti or by any one else with his consent, that there was no satisfactory evidence to establish that appeals were made to the electorate to vote for Sidhanti or to refrain from voting for the other candidates on the ground of religion or language, and that the applicant Daulta failed to prove that an appeal on the ground of caste, community or religion or language had been made to the electorate to further the prospects of Sidhanti or to prejudicially affect the election of the other candidates.
On these and findings recorded on other issues not material in this appeal, the petition filed by Daulta was dismissed by the Election Tribunal.
Daulta prefered an appeal against that order to the High Court of Judicature for Punjab.
The High Court held that the word "Om" is a religious symbol of the Hindus in general and of the Hindus belonging to the section known as Arya Samaj in particular and that the flag bearing the inscription "Om" is a religious symbol, that "Om Dhwaj" was flown during the election campaign on the election offices of the Hariana Lok Samiti especially at Sampla and Rohtak, that the Samiti office was used by Sidhanti for his election campaign, that Hariana Lok Samiti was generally using the "Om Dhwaj" to further the prospects of its candidates, that out of the agents and supporters of Sidhanti "Bharat Singh at least once and Bhagwan Dev invariably used" the Om flag on their vehicles while attending the meetings convened by the Hariana Lok Samiti in furtherance of the election campaign of Sidhantn.
that the Om flag was flying "on the pandal of the meeting" held at Majra Dubaldhan on January 19, 1962 when Sidhanti and his agents and supporters delivered speeches in support of the election campaign and that at the meeting held at Rohtak town, Piare Lal Bhajnik sang a song in the presence of Sidhanti, the purport of which was that the honour of the Om flag should be upheld, that Bhagwan Dev was using the Om flag with the consent of Sidhanti and that Pare Lal Bhajnik at the Rohtak town meeting also sang the son in honour of the Om flag with the consent of Sidhanti.
The High Court further held that the appellant had delivered speeches at Majra Dubaldhan in the pandal on which the Om flag was flying, that as even an isolated act of the use 755 of or appeal to the Om flag may constitute a corrupt practice under section 123(3) that corrupt practice by Sidhanti and his agents and by his supporters with his consent was established.
The High Court also held that Sidhanti bad appealed for votes on the ground of his language and had asked the electorate to refrain from voting for Daulta on the ground of the language of the latter, and such appeals constituted a corrupt practice.
The High Court accordingly allowed the appeal and declared the election of Sidhanti void under section 100 (1) (b) of the Act.
Against the order this appeal is preferred with certificate granted by the High Court.
Two principal questions which survive for determination in this appeal are: (1) Whether a religious symbol was used in the course of election by the appellant, his agents or other persons with his consent in furtherance of the prospects of his election; and (2) Whether appeals were made to the electorate by Sidhanti, his agents or other persons with his consent to vote in his favour on account of his language and to refrain from voting in favour of Daulta on the ground of his language.
In order to appreciate the plea raised by counsel for the parties and their beating on the evidence it may be useful to refer to the political background in the Hariana region and the constituency in particular, in which corrupt practices are alleged to have been committed.
The territory of the State of Punjab is divided into two regions the 'Hindi speaking region ' and the Tunjabi speaking region '.
The Hindi speaking region is very largely populated by Hindus, while in the Punjabi speaking region the population is approximately equally divided between the Hindus and Sikhs.
In the Punjab before the partition, Urdu and English were the 'two official languages.
After the partition a controversy about the official language arose.
The Government of Punjab decided to replace Urdu and English by Hindi in the Hindi speaking region and Punjabi in the Punjabi speaking region, and for that purpose a scheme called the 'Sachar formula ' was devised, the salient feature of which was that every student reading in the Punjab schools, by the time he passed 756 his matriculation examination should be proficient both in Hindi and Punjabi.
Under the scheme two Regional Committees were formed one known, as the Hindi Regional Committee and the other the Punjabi Regional Committee.
The function of the Committees was to advise the local Government in matters of finance and other related matters.
There was great resentment against the formation of the Regional Committees and the implementation of the Sachar formula which resulted in the launching of a movement called "the Hindi agitation".
The agitation against the language policy of the Government gained strength and there was a great mass movement in 1957 in the entire State of Punjab.
In the last week of December 1957 there was a settlement between the organisers of the movement and the State Government and the movement was called off.
It appears that some of the leading figures in this agitation attempted to make political capital out of this movement and set themselves up as probable candidates for the next election.
In the Arya Samaj in the Punjab there are two major sections, one called the 'Gurukul Section ' and the other called the 'College Section '.
The Gurukul Section is again divided into the Hariana Section and the Mahashe Krishna Section.
It is the case of Daulta that it is the Gurukul Section of the Araya Samaj relying upon the religious and linguistic differences which sought to make at the time of the election, appeals to religions and use of religious symbols.
As we have already observed.
Daulta challenged the election on the ground that Sidhanti, his election and other agents committed many corrupt practices.
Before the Tribunal he restricted his case to the corrupt practices falling within cls.
(3) and (3A) of section 123 of the Representation of the People Act 1951.
His plea of undue influence falling within cl.
(2) failed before the Tribunal and also before the High Court, and it has not been relied upon before us.
Similarly his plea that Sidhanti, his election and other agents had promoted or attempted to promote, feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community, or language was negatived by the Tribunal and also by the High Court and that plea also does not fall to be determined by us.
Daulta had also alleged 757 that appeals were made by Sidhanti and his election and other agents, to the electorate to vote for him or refrain from voting for Daulta on the ground of his Sidhanti 's religion and language and that Sidhanti and his agents used and appealed to religious symbols such as the Om flag for the furtherance of the prospects of the election of Sidhanti and for prejudicially affecting the election of Daulta.
It is on this last question about the use of and appeal to religious symbols and appeal to the language of the two candidates for the furtherance of the prospects of the election of Sidhanti that the Tribunal and the High Court have differed.
It may be useful to refer to the relevant provisions of the Act, before dealing with the matters in dispute.
Section 100(1) sets out the grounds on which an election may be declared void.
In so far as that section is material in the present appeal, it provides: "Subject to the provisions of sub section (2) if the Tribunal is of opinion. (a) * * * * * (b) that any corrupt practice has been committed by returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; (c) * * * * * (d) * * * * * the Tribunal shall declare the election of the returned candidate to be void." By sub section
(2) if in the opinion of the Tribunal.
a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the Tribunal is satisfied (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent , (b) * * * * * * (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practice at the election; and 758 (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agent, the Tribunal may decide that the election of the returned candidate is not void.
Section 123 sets out what shall be deemed to be corrupt practices for the purpose of the Act.
Clause (3) as amended by Act 40 of 1961, which alone is material in this appeal, provides: "The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate." The clause falls into two parts (i) an appeal by a candidate, his agents or by other persons with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language; and (ii) use of or appeal to religious symbols, national symbols or national emblems for the furtherance of the prospects of the election of the candidate or for prejudicially affecting the election of any candidate.
The first part in terms makes it a condition that the appeal is made by a candidate or his agent or any other person with the consent of the candidate or his agent.
There is no reference in the second part to the person by whom the use of, or appeal to, the religious or the national symbols, such as the national flag or the national emblem may be made, if such use of or appeal to them has been made to further the prospects of the election of the candidate or to prejudicially affect the election of any candidate.
But it is implicit in section 123(3), having regard to the terms of section 100, that the use of or appeal to the national or religious symbols must be made by the candidate of his election agent or by some other person with the consent of the candidate or his election agent, before it can be regarded as a ground for declaring the election void.
If the evidence on the record fails to establish 759 the responsibility for the use of or appeal to the religious or national symbols by the returned candidate or by his election agent or by any other person with his consent or his election agent, no ground for setting aside the election may be deemed to be made out.
The first question to which we must then turn is, whether the "Om flag" can be regarded as a "religious symbol" within the meaning of section 123 (3).
This question has to be examined in two branches (i) whether the word "Om" has any special religious significance, and, (ii) whether the use of "Om" on a flag or pennant makes it a religious symbol.
If the respondent Daulta establishes that the "Om flag" is a religious symbol, the question will arise whether the use of or appeal to the Om flag was made in the election campaign for furtherance of his prospects by Sidhanti or by his agents or other persons with his consent or the consent of his election agent, The expression "Om" is respected by the Hindus generally and has a special significance in the Hindu scriptures.
It is recited at the commencement of the recitations of Hindu religious works.
Macdonell in his A Practical Sanskrit Dictionary states that "Om" is the sacred syllable used in invocations, at the commencement of prayers, at the beginn ing and the end of Vedic recitation, and as a respectful salutation: it is a subject of many mystical speculations.
In the Sanskrit English Dictionary by Monier William it is said that "Om" is a sacred exclamation which may be uttered at the beginning and end of a reading of the Vedas or Previously to any prayer; it is also regarded as a particle of auspicious salutation.
But it is difficult to regard "Om" which is a preliminary to an incantation or to religious books as having religious significance.
"Om" it may be admitted is regarded as having high spiritual or mystical efficacy: it is used at the commencement of the recitations of religious prayers.
But the attribute of spiritual significance will not necessarily impart to its use on a flag the character of a religious symbol in the context in which the expression religious symbol occurs in the section with which we are concerned.
A symbol stands for or represents something material or abstract.
In order to be a religious symbol, there must be a visible 760 representation of a thing or concept which is religious.
To 'Om ' high spiritual or mystical efficacy is undoubtedly ascribed; but its use on a flag does not symbolise religion, or anything religious.
It is not easy therefore to see how the Om flag which merely is a pennant on which is printed the word 'Om ' can be called a religious symbol.
But assuming that the Om flag may be regarded as a religious symbol, the evidence on the record is not sufficient to establish that by Sidhanti, his election agents or any other person with his consent or the consent of his election agent, Om flag was used or exhibited, or an appeal was made by the use of the Om flag to further the prospects of Sidhanti at the election.
It may be remembered that in the trial of an election petition, the burden of proving that the election of a successful candidate is liable to be set aside on the plea that he was responsible directly or through his agents for corrupt practices at the election, lies heavily upon the applicant to establish his case, and unless it is established in both its branches i.e. the commission of acts which the law regards as corrupt, and the responsibility of the successful candidate directly or through his agents or with his consent for its practice not by mere preponderance of probability, but by cogent and reliable evidence beyond any reasonable doubt, the petition must fail.
The evidence may be examined bearing this approach to the evidence in mind.
Between the months of December 10, 1961 and February 18, 1962, fourteen meetings were held in the constituency as a part of the election campaign of Sidhnti.
These meetings were held at Beri, Barhana, Dighal, Akheri Madanpur, Sampla, Ladpur, Majra Dubaldhan, Pakasma, Assaudha.
Jhajjar, Badli Dulehra, Sisana and Bahadurgarh.
There was, it is claimed by the applicant, one more meeting on February 4, 1962, at Rohtak town which is outside the Jhajjar constituency.
The Tribunal held that the evidence was not sufficient to prove that in the meetings at Beri, Barhana, Dighal, Sampla, Ladpur, Pakasma.
Assaudha, Jhajjar, Badli, Dulehra, Sisana and Bahadurgarh 'Om ' flag was exhibited in furtherance of the election prospects of Sidhanti and with that view the High Court has agreed.
The Tribunal 761 also held that there was no reliable evidence that at Majra Dubaldhan on January 19, 1962, and at Rohtak town on February 4, 1962, 'Om ' flag was used as a religious symbol.
On this part of the case, however, the High Court disagreed with the Tribunal.
Rohtak town was not, but Rohtak suburban area was, within the constituency in which Daulta and Sidhanti were contesting the election.
Therefore the only meeting which took place within the constituency where Sidney and Daulta contested the election in which according to the High Court the Om flag was used was at Majra Dubaldhan held on January 19, 1962.
Six witnesses directly spoke about the details of that meeting, beside Sidhanti.
Sidhanti said generally that the evidence given by the wit nesses for Daulta regarding what transpired at Maira Dubal dhan and three other meetings was not true.
The witnesses for Daulta were Roop Ram.
Sukhi Ram and Ramdhari Balmiki.
The witnesses who supported the case of the appellant were Piare Lal, Prof. Sher Singh and Jug Lal.
It may be observed that the High Court placed no reliance upon the testimony of Ramdhari Balmiki and no arguments have been advanced before us suggesting that his testimony was reli able.
Roop Ram a police constable has deposed that about mid day on January 19, 1962, a meeting was held at Majra Dubaldhan and that at that meeting Piare Lal sang a bhajan about the Om flag and he saw the Om flag flying on the pandal of the meeting which was attended by four to five thousand persons.
According to the witness Nanhu Ram, Badlu Ram, Jagdev Singh Sidhanti, Bhagwan Dev, Ramdhani Balmiki, Attar Singh, Prof. Sher Singh and Acharya Bhagwan Dev made speeches, that Acharya Bhagwan Dev in the course of his speech asked people not to vote for Daulta but to vote for the candidate who was seeking election on the Hariana Lok Samiti ticket.
In cross examination he admitted that he had been supplied with a copy of the report which he had made to the D.I.G., C.I.D., Chandigarh, and that he had gone through the report two or three times, before he gave evidence.
The Tribunal refused to place reliance upon the testimony of this witness and of another police constable Ganesh Dass who claimed to have remained present in the various political meetings.
It appears that the witness had memorised the so called reports and the same were not made available to counsel for Sidhanti 762 to challenge the truth of the statements made by the wit nesses.
The High Court has not given any adequate reasons for accepting the testimony of the witness, when the Tribunal which had opportunity of seeing the witness and noting his demeanour had refused to accept the testimony.
Sukhi Ram deposed that he was a sarpanch of Dubaldhan Panchayat for about two years, and that he was present at the meeting convened by the Hariana Lok Samiti on January 19, 1962, for canvassing votes for the candidates of Hariana Lok Samiti, that Prof. Sher Singh and Sidhanti came in a jeep on which there was flying flag with 'Om ' inscribed thereon, that he saw several other vehicles flying the Om flag and that the vehicle in which he went to the meeting also was carrying the Om flag.
The Tribunal was of the view that the facts elicited in the cross examination of this witness disclosed that his recollection about other meetings which he had attended was poor, whereas his recollection about the meeting held at Majra Dubaldhan was very clear, and that the reasons given by the witness for specially remembering the details of the proceedings of the meeting in Majra Dubaldhan and not of other meetings could not be accepted.
In the view of the Tribunal the witness was interested in Daulta, and this inference was supported by the fact that Daulta had sent him a copy of his election petition before it was even presented to the Election Commission.
It also appears that the evidence given by this witness was inconsistent with the summary of the meeting given in Sch. 'D ' to the petition and for this reason according to the Tribunal the testimony of the witness "did not carry conviction" and "it was not safe to rely upon it".
The High Court after summarising the effect of the evidence observed that it did not appear from the deposition given by the witness that he was in any manner interested in Daulta.
In so observing the High Court appears unfortunately to have lost sight of the grounds given by the Tribunal.
Witness Piare Lal stated that he was present at the meeting held at Majra Dubaldhan and that none of the speakers suggested that the electors should vote on the ground of caste, creed, religion or language.
He also stated that at 763 none of the meetings there was any Om flag either inside or outside the pandal of the meetings.
Prof. Sher Singh who was another witness examined on behalf of Sidhanti deposed that slogans shouted in the meetings were political slogans and that he did not see Om flags in any pandal of the meet ings, and that he 'had instructed all the candidates and the members of the Hariana Lok Samiti not to use any flag or symbol other than the symbol allotted to them.
Jug Lal, another witness examined on behalf of Sidhanti, stated that at the meeting at Majra Dubaldhan on January 19, 1962, there were no Om flags to be seen anywhere either inside or outside the meeting and that there were no Om flags flying on any of the vehicles.
The testimony of the witnesses Piare Lal, Prof. Sher Singh and Jug Lal was discarded by the High Court, because in their view the witnesses were interested in Sidhanti.
Even if this view about the evidence of these three witnesses is accepted, the evidence led on behalf of Daulta of witnesses Sukhi Ram, Ramdhari Balmiki is wholly unreliable and the testimony of police constable Roop Ram is also not such that implicit reliance can be placed upon it.
We are unable, therefore, to agree with the High Court in the conclusion it has reached that it had been proved satisfactorily that Om flag was flown at Majra Dubaldhan where Sidhanti and other .
speakers delivered speeches in furtherance of the election campaign.
The only other meeting at which it is found by the High Court that the Om flag was used in the meeting at Rohtak town on February 4, 1962, which town, it is common ground, is not within the Jhajjar parliamentary constituency from which Sidhanti and Daulta were contesting the election.
It is, however, said that Rohtak suburban area is within the Jhajjar parliamentary constituency and a& there is a grain market in Rohtak town and a large number of voters from the Jhajjar constituency assemble in that town a meeting was held by Sidhanti in which Om flag were exhibited.
The witnesses in support of the case of Daulta are Ram Nath Sapra, Dafedar Singh, K. K. Katyal and Satyavrat Bedi.
The principal witnesses who were examined by Sidhanti in respect of this meeting were Piare Lal, Bharat Singh, Budh Dev, Prof. Sher Singh and Bhagwan Dev.
764 Ram Nath Sapra who is a correspondent of several newspapers deposed that he had attended the meeting at Rohtak town at Anai Mandi 10 or 12 days before the actual polling.
According to the witness there was a big procession taken out before the meeting which carried flags either of the symbol of the 'Rising Sun ' or of 'Om ', that he had made reports about the proceedings of the Rohtak meeting and had sent the report of the same to all the five papers of which he was the correspondent.
The Tribunal was of the view that the testimony of the witness was unreliable, because he did not remember the details of any.
other meeting convened by the other parties, and that he could not speak about the names of the speakers who took part in the meeting convened by the Hariana Lok Samiti.
The testimony of the witness therefore was "far from convincing" and the testimony of Sidhanti, Piare Lal, Bharat Singh, Budh Dev, Prof. Sher Singh and Bhagwan Dev was more reliable.
In coming to the conclusion that the evidence of the witness was unreliable the Tribunal referred to the details given in Sch. 'D ' annexed to the petition under the heading 'Summary of the meetings ' and observed that the summary was at "complete variance" with the testimony of the witness.
The High Court was of the view that the witness Ram Sapra was "wholly disinterested" and therefore his evidence must be accepted.
The High Court did not refer to the infirmities disclosed in the testimony of the witness, particularly the discrepancies between the statement of Daulta in his petition and the testimony given by this witness.
Witness Dafedar Singh who is a police constable said that he had been deputed to report about the proceedings of the meeting.
His version is also different from the version as given in Sch. 'D ' annexed to the petition.
The High Court has not referred to the testimony of this witness in support of its conclusion and nothing more need be said about him.
K.K. Katyal said that he had attended the meeting at Rohtak town as a special correspondent of the Hindustan Times, Delhi and that he recollected that flags with a symbol of 'Om ' inscribed thereon were seen flying on some 765 vehicles but it was not possible for him to say who owned those vehicles, but from the flags and placards carried on the vehicles it appeared that they were of the Hariana Lok Samiti.
He also deposed that he had gone to the office of the Hariana Lok Samiti at Rohtak and saw a similar flag flying on the building of the office.
He admitted in cross examination that he did not visit any office of the Hariana Lok Samiti either at Bahadurgarh or at Sampla as all his attention was confined to the central office of the Hariana Lok Samiti at Rohtak.
He also stated that he had seen some shopkeepers in Sampla and Bahadurgarh flying Om flags on their stalls.
In the view of the Tribunal the testimony of this witness was vague and no reliance could be placed thereon.
While generally agreeing with this view,, the High Court observed that the testimony of the witness Katyal that the Om flag was flying at the office of the Hariana Lok Samiti at Rohtak which was the headquarters office and in the procession which was led by Bharat Singh a number of Om flags were seen may be accepted.
Satyavrat Bedi who is staff correspondent of the Indian Express stated that during his survey of the election campaign he visited Sampla, Bahadurgarh and Rohtak in one day, and made his report about his observations to the newspaper Indian Express, in which he had recorded that religious symbols and religion were being frequently used for damaging the chances of success of Daulta, that he had seen a large number of flags fluttering on many house tops.
that the flag on the office of the Hariana Lok Samiti was that of Om and the other organisations had their own flags, that he saw the Om flag fluttering on the office of Sidhanti at Sampla but he did not remember whether there was any flag of 'Om ' at his election office at Bahadurgarh.
The Tribunal declined to accept this testimony.
The High Court took a different view and observed that apart from any other infirmity regarding the use of the reports made by the witness, the statement made by him about his observation that he had seen the Om flag flying on the office of the Hariana Lok Samiti and on the motor vehicle of Bharat Singh could not be ruled out.
It must be remembered however that we are concerned at this stage with the 766 question whether in the meeting at Rohtak on February 4, 1962.
Om flags were exhibited.
On that part of the case the evidence of Satyavrat Bedi is not of much use.
Sri Ram Sharma was a candidate for election on behalf of a political party called "the Hariana Front".
He deposed that he had never attended any procession or meeting organised by the Hariana Lok Samiti but he had seen the motorvehicles employed by the Hanana Lok Sanmti carrying Om flags which were used by the candidates of the Hariana Lok Samiti.
He stated that he contributed a number of articles to Hariana Tilak, Rohtak, founded by him in which he had published on January 4, 1962.
an article condemning, the use of the Om flag for the purpose of elections.
The article published on January 4, 1962, can have no bearing on the use of the flag at Rohtak in the meeting dated February 4, 1962.
The High Court did not place any reliance upon the testimony of this witness.
This is all the evidence on behalf of Daulta to which our attention was invited by counsel for the parties that at the meeting at Rohtak on February 4, 1962, Om flags were exhibited and appeals were made to the flag as a religious symbol.
Apart from the general infirmity of the testimony, the Tribunal refused to accept the evidence of the witnesses on the ground that their statements considerably departed from the summary given in Sch. 'D ' by the petitioner Daulta himself.
In view of this inconsistency between the evidence given in Court and the allegations made by the applicant Daulta in the petition, it would be difficult, after discarding the evidence with regard to a very large number of meetings, to 'hold that in the meeting at Majra Dubaldhan which was within the constituency and in the meeting at Rohtak town which was outside the constituency, Om flags were displayed or appeals were made in the name of the Om flag to further the prospects of the election of Sidhanti.
We are, therefore, unable to agree with the conclusion of the High Court that the Om flag was used for election purposes at the time when election speeches were delivered by Sidhanti at Majra Dubaldhan or Rohtak town or that the Om, flag was used on the pandals at those meetings.
767 Two other matters which have a bearing on the use of the Om flag in the course of the election campaign by Sidhanti, and on which the High Court has relied may be referred to.
The High Court has found that Sidhanti used the office of the Hariana Lok Samiti at Rohtak town as his election office, but on this part of the case our attention has not been invited to any definite evidence which directly supports this conclusion.
The High Court merely observed that it was common ground that Sidhanti did not have any office of his own at Rohtak, and inferred from that circumstance that Sidhanti was using the office of the Hariana Lok Samiti for the election campaign.
But the inference is in the face of the evidence not justifiable, especially when Rohtak town was not within the constituency.
It was conceded by Sidhanti that Bhagwan Dev Sharma an Arya Samaj leader had been accustomed for many years past to carry on his motor vehicle a pennant bearing the Om mark and his name.
Witness Bhagwan Dev Sharma stated that he had attended the meetings of the Hariana Lok Samiti and had addressed them because he agreed with their ideology and thought that the institution was for the benefit of the Hindu religion, that he had never been asked to remove the Om flag from his jeep when he reached those meetings and that he had not attended those meetings either on account of Prof. Sher Singh or Sidhanti but "in his independent capacity as a citizen of India having a right to vote", and that he approved of the candidature of Sidhanti in preference to that of his opponent.
But if the witness was accustomed to use a pennant with Om mark on it for many years past, in the absence of clear evidence to show that he was an agent of Sidhanti or that he acted with the consent of Sidhanti and made an appeal to the flag, it would be difficult to hold from the circumstances that during the days of the election campaign the witness did not remove the flag from the motor vehicle, that Sidhanti made an appeal to the electorate by using a religious symbol to further his prospects at the election.
The evidence about the user of the Om flag by Bharat Singh when he is alleged to have taken out a procession does not appear to be reliable.
768 On a careful survey of the testimony of the witnesses we are unable to agree with the conclusions recorded by the High Court that: (a) Sidhanti "had used an office of the Hariana Lok Samiti on which the "Om flag" was flying for election purposes and further that he gave election speeches at a pandal where the Om flag was fluttering in furtherance of his prospects at the election"; (b) "the agents and supporters delivered speeches about the "Om flag" at the meeting held at Majra Dubaldhan on January 19.
1962, that Piare Lal Bhajnik sang a song, the purport of which was that the honour of the Om flag should be upheld"; and (c) "the Hariana Lok Samiti, the party to which Sidhanti belonged, was using the Om flag for the purpose of election campaign", and thereby committed corrupt practices.
It is true that the use of the Om flag by Bhagwan Dev on his conveyance is admitted but that again is for reasons already set out not sufficient to enable the Court to hold that it was for the purpose of furthering the prospects of election of Sidhanti.
In considering whether appeals were made to the electorate to vote for Sidhanti on the ground of his language or to refrain from voting for Daulta on the ground of Daulta 's language, it is necessary in the first instance to ascertain the true meaning of the expression "on the ground of his language".
By section 123(3) which was introduced for the first titne in its present form by Act 40 of 1961, appeal by a candidate or his agent to vote or refrain from voting for a person on the ground of language is made a corrupt practice.
This clause must be read in the light of the fundamental right which is guaranteed by article 29(1) of the Constitution, for in ascertaining the true meaning of the corrupt practice, the area of the fundamental right of citizen must be steadily kept in view.
The clause cannot be so read as trespassing upon that fundamental right.
article 29(1) provides: "Any section of the citizens residing in the territory of India or any part thereof having a distinct 769 language, script or culture of its own shall have the right to conserve the same.
" The Constitution has thereby conferred the right, among others, to conserve their language upon the citizens of India.
Right to conserve the language of the citizens includes the right to agitate for the protection of the language.
Political agitation for conservation of the language of a section of the citizens cannot therefore be regarded as a corrupt practice within the meaning of section 123(3) of the Representation of the People Act.
That is clear from the phraseology used in section 123(3) which appears to have been deliberately and carefully chosen.
Unlike article 19(1), article 29(1) is not ' subject to any reasonable restrictions.
The right conferred, upon the section of the citizens residing in the territory of India or any part thereof to conserve their language, script or culture is made by the Constitution absolute and therefore the decision of this Court in Jumuna Prasad Mukhariya and others vs Lachhi Ram and others(1) on which reliance was placed by the High Court is not of much use.
In that case sections 123(3) and 124(5) of the Representation of the People Act as they then stood were challenged as infringing the fundamental freedom under article 19 (1) (a) of the Constitution, and the Court in negativing the contention held that the provisions of the Representation of the People Act did not stop a man from speaking: they merely prescribed conditions which must be observed if a candidate wanted to enter Parliament.
The right to stand for an election is, it was observed, a special right created by statute and can only be exercised on the conditions laid down by the statute, and if a person wants to stand for an election he must observe the rules.
These observations have no relevance to the protection of the fundamental right to conserve language.
The corrupt practice defined by cl.
(3) of section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate 's language.
It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of section 100 read with section 123(3).
Therefore it is only when the electors are asked to vote or not to vote because of the (1) [19551 1 S.C.R. 608.
134 159 S.C. 49 770 particular language of the candidate that a corrupt practice may be deemed to be committed.
Where however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.
It is in the light of these principles, the correctness of the findings of the High Court that Sidhanti was guilty of the corrupt practice of appealing for votes on the ground of his language and of asking the voters to refrain from voting_ for Daulta on the ground of the language of Daulta may be examined.
The petition filed by Daulta on this part of the case was vague.
In paragraph 1 1 of his petition it was averred that Sidhanti and his agents made a systematic appeal to the audience to vote for Sidhanti and refrain from, voting for Daulta "on the ground of religion and language", and in paragraph 12 'it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the electorate to vote for him and refrain from voting for Daulta "on the ground of his religion and language".
A bare perusal of the particulars of the corrupt practice so set out in paragraphs 1 1 & 12 are to be found in Schs. 'C ' & 'D ' clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate.
Similar exhortations are said to have been made by the other speakers at the various meetings.
It is stated in Sch.
'D ' that resolutions were passed at the meetings urging upon the Government to "abolish Punjabi from Hariana", that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana.
These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from ' voting on the ground of language of the contesting candidate.
771 Speeches made at political meetings held for canvassing votes must be examined in the context of the atmosphere of a Political campaign and the passions which are generally aroused in such a campaign.
In adjudging whether an appeal is made to the language of the candidate, a meticulous examination of the text of the speech in the serene atmos phere of the Court room picking out a word here and a phrase there to make out an offending appeal to vote for or against a candidate on the ground of language would not be permissible.
A general and overall picture of the speeches delivered by Sidhanti and other speakers at the meeting disclosed nothing more than a tale of political promises, exhortations and inducements to vote at the forthcoming election for Sidhanti.
It is not disputed that in 1957 there was a wide spread agitation in the State of Punjab against the enforcement of the education policy of the State, incorporated in the "Sachar formula".
Many persons were imprisoned or detained in the cause of the agitation for individual acts done by them.
But the movement was not and could not be declared illegal.
It is common ground that in the Harriana region, Hindi is the predominant language of the people and if a section of the people thought that compelling the students in the Hariana region to learn Punjabi was not in their interest and in the election campaign such a view was advocated and votes were canvassed on the promise that the candidate if elected will take steps to conserve the language of the region, it would be difficult to hold that appeal as amounting to a corrupt practice.
It is open to a candidate in the course of his election campaign to criticise the policies of the Government including its language policy and to make promises to the electorate that if elected he will secure a reversal of that policy or will take measures in the Legislature to undo the danger, real, apprehended or even fancied, to the language of the people.
The object of the Hariana Lok Samiti was evidently to resist the imposition of Punjabi in the Hariana region and that object appears to have been made the platform in the election campaign.
Thereby it could not be said that the voters were asked not to vote for Daulta on the ground of his language, assuming that it was other than 772 Hindi.
Nor can it be said that it was an appeal to the voters to vote for Sidhanti on the ground of his language.
The evidence which has been referred to by the High Court regarding the speeches made by Badlu Ram and Harphul Singh on December 10, 1961, at Beri on the face of it shows that the speeches were an attack against Daulta in respect of his political conduct, behaviour and beliefs.
The speeches made at the meetings at Sampla, Ladpur and Majra Dubaldhan read like political harangues addressed to the electorate to vote for the candidate who would protect the language of the people of Hariana.
At Bahadurgarh also Sidhanti is stated to have claimed that he was opposed to the Government and its supporter Daulta in the matter of the language movement.
The evidence also showed that Sidhanti had appealed to the voters to vote for him because he was actively associated with the Hindi agitation movement and that he was championing the cause of Hindi and ' resisting the imposition of a rival language Punjabi and thereby suggesting that Daulta was hostile to the cause of Hindi language and was supporting the Punjabi language.
The criticism by 'Sidhanti in his appeal to the electorate related to the political leanings of Daulta, and his support to the policy of the Government and wag not personally directed against him.
Nor did Sidhanti appeal to the voters to vote in his favour on account of his language.
Such political speeches espousing the cause of a particular language and making promises or asking the people to protest against the Government of the day in respect of its language policy is not a corrupt practice within the description of corrupt practice under section 123(3) of the Act.
We are therefore unable to agree with the High Court that Sidhanti was guilty of any corrupt practice under section 123 (3) by appealing for votes on the ground of his language or by asking the voters to refrain from voting for Daulta on the ground of his language.
The appeal will therefore be allowed and the order passed by the Tribunal restored with costs in this Court and the High Court.
Appeal allowed.

Output:
The appellant was declared elected to the House of the People from a parliamentary constituency.
The respondent No. 1 challenged the election of the appellant on the ground that the appellant, his election and other agents committed many corrupt practices falling within section 123 of the Representation of the People Act, 1951.
The main grievance of respondent No. was that the appellant and his agents had made appeals to the electorate to vote for him or to refrain from voting for Daulta (Respondent No. 1) "on the ground of his religion and language", and that the appellant and his agents use a religious symbol a flag called "Om Dhwaj" in all the election meetings.
The case of the appellant was that the flag was not a religious symbol and denied that it was used on any occasion by him or his agents and submitted that it was used only by one person who was always accustomed to carry it on his motor car.
The appellant also pleaded that an appeal to the electorate on the ground of language or religion did not amount to a corrupt practice within the meaning of section 123 of the Act.
The Tribunal dismissed the election petition of respondent No. I but the High Court allowed the appeal and declared the election of the appellant void under section 100(1)(b) of the Act.
Hence the appeal.
Held (i) The use of or appeal to the national or religious symbols to be a corrupt practice must be made by the candidate or his election agent, or by some other person with the consent of the candidate or his election agent, before it can be regarded as a ground for declaring the election void.
(ii) 'Om 'is regarded by Hindus as having high spiritual or mystical efficacy:it is used at the commencement of the recitations of religious prayers.
But the attribute of spiritual significance will not necessarily impart to its use on a flag the character of a religious symbol within the meaning of section 123.
A symbol stands for or represents something material or abstract.
To be a religious symbol, there must be a visible representation of a thing or concept which is religious.
To 'Om ' high spiritual or mystical efficacy is undoubtedly ascribed, but its use on 751 a flag does not symbolise religion or anything religious.
The High 'Court errd in holding that the 'Om ' flag was a religious symbol and its use in an election comes within the purview of cl.
(3) of section 123 of the Act.
(iii)Clause (3) of section 123 of the Act must be read in the light of the fundamental right which is guaranteed by article 29(1) of the Constitution; the clause cannot be read as trespassing upon The fundamental right under article 29(1).
Article 29(1) of the Constitution has conferred the Tight, among others, to conserve their language upon the citizens of India.
Right to conserve the language of the citizens includes the right to agitate for protection of the language.
Political agitation for conservation of the language of a section of the citizens cannot therefore be regarded a a corrupt practice within the meaning of section 123(3) of the Act.
Jamuna Prasad Mukhariya and Ors.
vs Lachhi Ram and Ors., [1955]1 S.C.R. 608, distinguished.
(iv)The corrupt practice defined by cl.
(3) of section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate 's language.
It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of section 100 read with section 123(3).
Therefore it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be ,deemed to be committed.
Where, however, for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, making of such appeals or promises will not amount to a corrupt practice.