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Criminal Appeal No. 177 of 1957.
Appeal by special leave from the judgment and order dated April 11, 1957, of the Punjab High Court in Criminal Appeal No. 7 D of 1955, arising out of the 463 judgment and order dated January 19, 1955, of the Court of Special Judge, at Delhi in Corruption Cas No. 2 of 1953.
G. section Pathak, R. Ganapathy Iyer and G. Gopalakrishnan, for the appellant.
C. K. Daphtary, Solicitor General of India, G.C. Mathur and R. H. Dhebar, for the respondents.
May 21.
The Judgment of the Court was delivered by SINHA J.
This appeal by special leave is directed against the judgment and order of the High Court on Judicature for the State of Punjab at Chandigarh dated April 11, 1957, affirming those of the Special Judge, Delhi, dated January 19, 1955, convicting the appellant under section 5(2) of the Prevention of Corruption Act (2 of 1947).
The sentence passed upon the appellant was six months ' rigorous imprisonment.
The facts leading upto this appeal, may shortly be stated as follows: During and after the Second World War, with a view to augmenting the food resources of the country, the Government of India instituted a "Grow More Food Division" in the Ministry of Agriculture.
section Y. Krishnaswamy, a Joint Secretary in; that Ministry, was placed in charge of that Division, with effect from January 2, 1947.
The appellant was working in that Department as Director of Fertilizers.
He was a former employee of the well known producers of fertilizers, etc., called "Imperial Chemical Industries ".
Fertilizers were in short supply and, therefore large quantities of such fertilizers had to be imported from abroad.
As chemical fertilizers were in short supply not only in India but elsewhere also, an international body known as the " International Emergency Food Council " (I.E.F.C.) had been set up in United States of America, and India was a member of the same.
That body used to consider the requirements of different countries in respect of fertilizers, and used to make allotments.
Russia was not a member of that Organisation.
Towards the end of 1946, a Bombay firm, called 'Messrs. Nanavati and Company ', 464 which used to deal in fertilizers and had bussiness contcts with Russia, offered to supply ammonium sulphate,from Russia to the Government of India.
In the years 1947 and 1948, considerable quantities of ammonium sulphate were obtained through Messrs. Nanavati and Company aforesaid.
One D. N. Patel, who was a former employee of Messrs. Nanavati and Company, joined a partnership business under the style of Messrs. Agri Orient Industries Limited of Bombay '.
This firm obtained a contract from the Government for the supply of twenty thousand tons of ammonium sulphate from United States of America, in February, 1950.
In the course of this business deal, the said patel experienced some difficulty in obtaining Government orders regarding some consignments.
The appelant was approached in that connection; and it is aleged that Patel paid to the appellant Rs. 10,000 at Bombay as bribe for facilitating matters.
But in spite of the alleged payment, difficulties and delays occurred and the consignments, even after they had reached heir destination in India, were not moving fast enough, thus, causing considerable loss to the firm in which Patel was interested.
Patel, therefore approached Shri K. M. Munshi who was then the Minister For Food and Agriculture in Delhi, and disclosed to him the alleged payment of bribe of Rs. 10,000, as also the fact that the appellant had been receiving arge sums of money by way of bribes for showing favours in the discharge of his duties in the Department.
The Minister aforesaid directed thorough enquiries to be made, and the matter was placed in the hands of the Inspector General of Special Police Establishment.
A departmental committee was also set up of three senior officers of the Department to hold a departmental inquiry, and ultimately, as a result of that inquiry, the Minister passed orders of dismissal of the appellant, in August, 1950.
A further inquiry in the nature of a quasi judicial inquiry, was held by the late Mr. Justice Rajadhyaksha of the Bombay High Court, in 1951.
The inquiry related to matters concerned with the import of fertilizers into India.
After receipt of the report of the inquiry by 465 the late Mr. Justice Rajadhyaksha, in January, 1952, and after consideration of the matters disclosed in that report, a first information report was lodged on April 4, 1952, and thorough investigations were made into the complaints.
The result was that two cases were instituted.
The first one related to an " alleged conspiracy involving the appellant, Krishnaswamy and one of the proprietors of Messrs. Nanavati and Company, and several others, relating to bribery and corruption in connection with the supplies of ammonium sulphate from Russia.
With that case, we are not concerned here.
The second case, out of which the present appeal arose, was instituted against two persons, namely the appellant and Krishnaswamy, that they had entered into a conspiracy to receive bribes and presents from various firms, in connection with the import of fertilizers.
The learned Special Judge, who heard the prosecution evidence, came to the conclusion that it did not disclose any conspiracy as alleged, except in certain instances which formed the subject matter of the charge of conspiracy which was being tried separately, as aforesaid.
The present case, therefore, proceeded against the appellant alone under two heads of charge, namely, (1) that he had been habitually accepting or obtaining, for himself or for others, illegal gratifications from a number of named firms and others, in connection with the import and distribution of fertilizers section 5(1) (a) of the Prevention of Curruption Act, 1947 (hereinafter referred to as 'the Act '), and (2) that he had been habitually receiving presents of various kinds by abusing his position as a public servants.
6 (1) (d) of the Act.
The High Court, in agreement with the learned Special Judge, found the evidence of P. Ws. 9 and 10, who were the principal prosecution witnesses as regards the passing of certain sums of money from certain named firms to the appellant, as wholly unreliable.
Further more, Patel, being in the position of an accomplice, his evidence did not find sufficient corroboration from other facts and circumstances proved in the case.
The High Court, not being is a position to accept the tainted evidence aforesaid, found that the case of payment of 59 466 particular sums of money by way of bribes, had not been established.
But relying upon the presumption under sub section
(3) of section 8 of the Act, the High Court came to the conclusion that the appellant had not satisfactorily accounted for the receipt of Rs. 73,000 odd in cash and about Rs. 18,000 by cheques, during the years 1947 and 1948, which sums were wholly disproportionate to the appellant 's known source of income, namely, his salary as a Government servant, and that, therefore, he was guilty of criminal mis conduct in the discharge of his official duties.
In that view of the matter, the High Court confirmed the conviction and sentence of six months ' rigorous imprisonment, passed by learned Special Judge of Delhi.
The learned counsel for the appellant has contended (1) that on the admitted facts, the ingredients of section 5(3) of the Act, had not been established, (2) that when the charge in respect of specific instances of corruption, has not been proved, as found by the courts below, it should have been held that the contrary of the presumption contemplated by section 5(3), namely, of the guilt of criminal misconduct, had been established, and (3) that the appellant 's statement under section 342 of the Code of Criminal Procedure, as also his statements contained in his written statement, had not been proved to be false, and that, therefore, it should have been held that the case against the appellant had not been proved beyond all reasonable doubt.
It is true that section 5(3) of the Act, does not create a new offence but only lays down a rule of evidence, enabling the court to raise a presumption of guilt in certain circumstances a rule which is a complete departure from the established principles of criminal jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence charged, and that the burden never shifts on to the accused to disprove the charge framed against him.
With reference to the provisions of section 5(3) of the Act, it has been contended, in the first instance, that the charge of criminal misconduct in the discharge of his official duties, is now confined to the fact as disclosed in his bank accounts with the Imperial Bank of India 467 (New Delhi Branch) and the Chartered Bank of India, Australia and China (Chandni Chowk Branch), that his nett credit with those banks totalled upto a figure just over Rs. 91,000.
He accounted for that large balance by stating that he was the only son of his father who had been able to give him advanced education in England for a period of over seven years; that after his return to India, he had been holding highly paid posts for about 20 years in the Imperial Chemical Industries, in the Army and in the Government of India; that he had no children and no other dependants except his wife; that with his limited household expenses, he was able to save a good round sum out of his salary and allowances which were considerable, because his duty took him throughout the length and breadth of the country, thus enabling him to earn large sums of money by way of travelling allowances which he saved by staying with his friends and relations during his official tours.
He added that he had received a gratuity for services rendered to the Army, and also considerable sums of money as his provident fund from the Imperial Chemical Industries, towards the end of November, 1947.
He also stated that his deposits in the two banks aforesaid, represented sums of money saved in cash out of his salaries, allowances and gifts from his parents, as also re payments of loans advanced by him to his friends while he was in the Army, and later.
He added that some of the deposits in cash were really re deposits of earlier withdrawals from the banks, as also the sale proceeds of his old car sold in June, 1948, for Rs. 5,500, together with the sale proceeds of gold jewelry belonging to his wife.
He also tried to explain the large deposits of cash in 1948, by alleging that he had borrowed a sum of rupees 20,000 from one Ganpat Ram on a pronote (which he, later on, re paid and obtained a receipt), with a view to building a house of his own in Delhi, but as that negotiation fell through, he deposited that cash amount in his account in the two banks aforesaid in August, 1948, as the creditor aforesaid would not accept re payment of the loan within a period of two years, unless the interest for that period was also paid 468 at the same time.
With reference to those statements of the accused from the dock, it was contended by the learned counsel for the accused that in view of those facts, it could not be said that the accused had not accounted for those large deposits with the two banks aforesaid.
The High Court has pointed out that the matters alleged in the , statement aforesaid of the accused, were capable of being easily proved by evidence which had not been adduced; that allegation was no proof, and that his lucrative posts in the Imperial Chemical Industries and in the Army, were matters of history in relation to the period for which the charge had been framed.
The High Court, therefore, found it impossible to accept the appellant 's bare statement from the dock as to how amounts earned far in the past, could find their way into the banks during the years 1947 and 1948.
It has been repeatedly observed by this Court that this Court is not a Court of criminal appeal, and we would not, therefore, examine the reasons of the High Court for coming to certain conclusions of fact.
Apparently, the High Court considered all the relevant statements made by the accused under section 342 of the Code of Criminal Procedure and in his written statement, and came to the conclusion that those statements had not been substantiated.
We cannot go behind those findings of fact.
Reference was also made to cases in which courts had held that if plausible explanation had been offered by an accused person for being in possession of property which was the subject matter of the charge, the court could exonerate the accused from criminal responsibility for possessing incriminating property.
In our opinion, those cases have no bearing upon the charge against the appellant in this case, because the section requires the accused person to " satisfactorily account." for the possession of pecuniary resources or property disproportionate to his known sources of income.
Ordinarily, an accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen (see illustration (a) to section 114 of the ).
The rule of law is that if there 469 is a prima facie explanation of the accused that he came by the stolen goods in an honest way, the inference of guilty knowledge is displaced.
This is based upon the well established principle that if there is a doubt in the mind of the court as to a necessary ingredient of an offence, the benefit of that doubt must go to the accused.
But the Legislature has advisedly used the expression "satisfactorily account".
, The emphasis must be on the word " satisfactorily ", and the Legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance.
Another argument bearing on the same aspect of the case, is that the prosecution has not led evidence to show as to what are the known sources of the appellant 's income.
In this connection, our attention was invited to the evidence of the Investigating Officers, and with reference to that evidence, it was contended that those officers have not said, in terms, as to what were the known sources of income of the accused, or that the salary was the only source of his income.
Now, the expression " known sources of income " must have reference to sources known to the prosecution on a thorough investigation of the case.
It was not, and it could not be, contended that " known sources of income " means sources known to the accused.
The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person.
Those will be matters " specially within the knowledge" of the accused, within the meaning of section 106 of the Evidence Act.
The prosecution can only lead evidence, as it has done in the instant case, to show that the accused was known to earn his living by service under the Government during the material period.
The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out of pocket expenses incidental to journeys performed by him for his official tours.
That could not possibly be alleged 470 to be a very substantial source of income.
The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life.
In the case of a, Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service.
His pension or his provident fund would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund.
We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant 's known sources of income.
It may be that the accused may have made statements to the Investigating Officers as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution.
In the present case, the prosecution has adduced the best evidence as to the pecuniary resources of the accused person, namely, his bank accounts.
They show that during the years 1947 and 1948, he had credit at the banks, amounting to a little over Rs. 91,000.
His average salary per mensem, during the relevant period, would be a little over Rs. 1,100.
His salary, during the period of the two years, assuming that the whole amount was put into the banks, would be less than one third of the total amount aforesaid, to his credit.
It cannot, therefore, be said that he was not in possession of pecuniary resources disproportionate to his known sources of income.
It was next contended that the burden cast on the accused by sub s.(3) of section 5 of the Act, was not such a heavy burden as lies on the prosecution positively to prove all the ingredients of an offence.
In that connection, reference was made to a number of decisions, particularly Rex vs Carrbriant(1), to the effect (1) , referred to under article 3907 at p. 1511 in Archbold Criminal Pleading Evidence and Practice ', 34th Edn. 471 that the onus of proof lies on the accused person to show that a certain proved payment was in fact not a corrupt payment, but that the burden is less heavy than that which, ordinarily, lies on the prosecution to prove its case beyond all reasonable doubt.
Reference was also made to Otto George Gfeller vs The King (1), Hate Sing Bhagat Singh vs State of Madhya Bharat (2) and Regina vs Dunbar(3).
In our opinion, those decisions do not assist the appellant in the present case.
In this case, no acceptable evidence, beyond the bare statements of the accused, has been adduced to show that the contrary of what has been proved by the prosecution, has been established, because the requirement of the section is that the accused person shall be presumed to be guilty of criminal misconduct 'in the discharge of his official duties " unless the contrary is proved.
" The words of the statute are peremptory, and the burden must lie all the time on the accused to prove the contrary.
After the conditions laid down in the earlier part of sub section
(3) of section 5 of the Act, have been fulfilled by evidence to the satisfaction of the court, as discussed above, the court has got to raise the presumption that the accused person is guilty of criminal misconduct in the discharge of his official duties, and this presumption continues to hold the field unless the contrary is proved, that is to say, unless the court is satisfied that the statutory presumption has been rebutted by cogent evidence.
Not only that, the section goes further and lays down in forceful words that " his conviction therefore shall not be invalid by reason only that it is based solely on such presumption.
" Lastly, it was argued that when the section speaks of the burden being on the accused person to prove the contrary, it must mean adducing evidence to disprove the charge.
The argument proceeds that as in the present case, the facts and circumstances mentioned in the charge had not been proved, the accused person must be acquitted as having disproved the charge with reference to the particular cases of bribery which had been held not proved.
In our opinion, there is a (1) A.I.R. 1943 P.C. 211.
(2) A.I R. (3) 472 fallacy in this argument.
The finding of the High Court and the court below, is that the prosecution had failed to adduce sufficient evidence to prove those particular facts and circumstances of criminal misconduct within the meaning of section 5(1)(a) of the Act, but the failure to bring the charge home to the accused under section 5(1)(a), does not necessarily lead to the legal effect contended for.
As soon as the requirements of sub section (3) of section 5 have been fulfilled,the Court will not only be justified in making, but is called upon to make, the presumption that the accused person is guilty of criminal misconduct within the meaning of section 5(1)(d).
In order to succeed in respect of the charge under section 5(1)(a), the prosecution has to prove that the accused person had accepted or obtained or agreed to accept or attempted to obtain from any person any gratification by way of bribe within the meaning of section 161 of the Indian Penal Code.
That charge failed because the evidence of P.W. 9 was not accepted by ' the High Court or the trial court.
The charge under section 5(1)(d) does not require any such proof.
If there is evidence forthcoming to satisfy the requirements of the earlier part of sub section
(3) of section 5, conviction for criminal misconduct can be had on the basis of the presumption which is a legal presumption to be drawn from the proof of facts in the earlier part of the sub section
(3) aforesaid.
That is what has been found by the courts below against the accused person.
Hence, the failure of the charge under cl.
(a) of sub section
(1) of section 5, does not necessarily mean the failure of the charge under section 5(1)(d).
In our opinion, the judgment of the High Court is correct, and the appeal is, accordingly, dismissed.
If the accused is on bail, he must surrender to his bail bond.
Appeal dismissed.

Output:
The appellant was put up on trial on charges under sections 5(1)(a) and 5(1)(d) of the Prevention of Corruption Act, 1947.
Payments of particular sums by way of bribe were not proved against him.
But the High Court, holding that the appellant 's bare statements from the dock unsupported by any other acceptable evidence could not satisfactorily account for the large deposits standing to his credit in his bank accounts raised the presumption under section 5(3) of the Act and held him guilty of criminal misconduct in the discharge of his official duty under section 5(1)(d) of the Act, concerning the conviction and sentence passed on him by the 462 special Magistrate.
It was contended on behalf of the appellant that the charge relating to specific instances of bribery having failed, the contrary to the presumption under section 5(3) Of the Act should have been held as established and in absence of any finding that his statements were false it should have been held that the charge against him had not been proved beyond all reasonable doubt.
Held, that section 5(3) of the Prevention of Corruption Act did not create a new offence but only laid down a rule of evidence that empowered the Court to presume the guilt of the accused in certain circumstances, contrary to the well known principle of criminal law that the burden of proof was always on the prosecution and never shifted on to the accused.
The Legislature by using the expression " satisfactorily account " in section 5(3) of the, Act, cast the burden on the accused not only to offer a plausible explanation as to how he came by the large wealth disproportionate to his known sources of income, but also to satisfy the court that his explanation was worthy of credence.
Consequently, cases under the general law where it had been held that the accused could be exonerated if he offered a plausible explanation could have no application.
The expression " known sources of income " used in that section referred to such sources of income as became known to the prosecution as a result of the investigation and could not mean those that were witthin the special knowledge of the accused, and it was no part of the duty of the prosecution to lead evidence in that regard.
Where the prosecution fulfilled the conditions laid down by the earlier part of section 5(3) Of the Act, the statutory presumption had to be raised and it would be for the accused to rebut the same by cogent evidence.
Rex vs Carrbriant, , and Otto George Gfeller vs The King, A.I.R. (30) ; Hate Singh Bhagat Singh vs State of Madhya Bharat, A.I.R. 1953 S.C. 468 and Regina vs Dunbar, , held inapplicable.
The failure to substantiate a charge under section 5(1)(a) of the Act on evidence would not necessarily mean an acquittal in respect of a charge under section 5(1)(d) of the Act.
If the requirements of the earlier part of section 5(3) were established by evidence, conviction for criminal misconduct under section 5(1)(d) based on the presumption under section 5(3) Of the Act would be perfectly valid in law.


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Appeals Nos.
369 to 375 of 1967.
599 Appeals from the judgment and order dated October 15, 1966 of the Gujarat High Court in Special Civil Applications Nos.
1475, 1479, and 1480 of 1965, and 119, 120, 12.2 and 125 of 1966 respectively.
G.L. Sanghi and Ravinder Narain, for the appellants (in all the appeals).
Bishan Narain, R. H. Dhebar and section P. Nayar, for respondents Nos. 1 and 2 (in all the appeals).
Arun H. Mehta and I.N. Shroff, for respondent No. 3 (in all the appeals).
The Judgment of the Court was delivered by Shelat, J.
These appeals by certificate are directed against the judgment of the High Court of Gujarat dismissing the writ petitions filed by the appellants for quashing the notifications dated August 28, 1964 and October 18, 1965 respectively issued under sections 4 and 6 of the Land Acquisition Act,1 of 1894.
The appellants are the owners of the lands in question situate at Ranoli, District Baroda.
The 3rd respondent Company also owns about 140 acres of land in the same village.
The appellant 's lands are either situate adjacent to and between the Company 's lands and the railway lines or are enclaves surrounded by lands belonging to the Company.
On July 22, 1961 the State Government issued a notification under sec.
4 of the Act to the effect that the appellants ' said lands were or were likely to be needed for a public purpose,, viz., for a fertilizer factory.
That notification was withdrawn on September 11, 1961 as the lands were stated to be unsuitable for such a factory.
The Government however issued the very next day a fresh notification under sec.
4 in respect of the same lands, this time for the purpose of the 3rd respondent Company.
Some of these appellants thereupon filed writ petitions challenging its validity.
While these petitions were pending before the High Court this Court delivered its decision in what is known as the first Arora Case(1).
To get over the difficulties arising from that decision, first an Ordinance and then the Amendment Act XXXI of 1962, were passed.
The Amendment Act was brought into force from July 20, 1962 with retrospective effect.
The Central Government thereafter made Rules under sec.
55 of the Act called the Land Acquisition (Companies) Rules which were brought into force from June 22, 1963.
On July 24, 1963 the State Government withdrew the notification dated September 12, 1961 whereupon the writ petitions filed by the appellants challenging the said notifications were withdrawn.
In the meantime one D.K. Master, who was then the Special Land Acquisition Officer, Baroda, started an inquiry under Rule 4 of the said Rules.
On August 28,1964 the State Government issued a notification under (1) [1962] Supp. 2 S.C.R. 149:A.I.R. 600 sec.
4 stating that the appellants ' said lands were needed or were likely to be needed for the establishment of a factory of the 3rd respondent Company.
The appellants filed their objections in the inquiry then held under sec.
5A but they were rejected.
On October 18, 1965 the State Government issued sec.
6 notification declaring that the said lands were needed for the factory of the 3rd respondent Company which it was stated was taking steps or en,gaging itself for manufacture of optical bleaching agents, interme diate dye stuffs etc., which according to the Government was for a public purpose.
The appellants thereupon filed writ petitions from which these appeals arise challenging the two notifications dated August 28, 1964 and October 18, 1965 respectively.
When these writ petitions came on for hearing the State Government produced a notification dated October 11, 1963 authorising the Special Land Acquisition Officers of the State to perform the functions of the Collector under sec. 3(c).
On certain contentions having been raised on the basis of this notification, the High Court adjourned the hearing to enable the State Government to explain the circumstances and the reasons for issuing the said notification.
On August 25, 1966 the said Master filed a further affidavit clarifying the Government 's position and the circumstances in which he performed the functions of the Collector under sec. 3(c).
Before the High Court the appellants contended that the pro cedure laid down in the said Land Acquisition (Companies) Rules was not followed, that the purpose for which the acquisition was being made was not a public purpose within the meaning of sec.
40(1)(a), that the acquisition was made mala fide and in colourable exercise of power, that the State Government had not applied its mind to the facts of the case and lastly that the inquiry under sec.
5A was a quasi judicial inquiry and that as an opportunity to be heard was not given to the appellants the proceedings under sec.
5A violated natural justice.
Counsel, however, conceded that the inquiry under section 5A was administrative but contended that the appellants were still entitled to be heard before the State Government formed its satisfaction that the lands were required for the Company.
The High Court rejected all these contentions and dismissed the writ petitions.
Hence these appeals.
Counsel for the appellants formulated the following five pro,positions on which he impugned the High Court 's judgment: (1)that the inquiry under Rule 4 of the Land Acquisition (Companies) Rules and the consequent report made by Master to the Government were invalid; therefore there being no valid report under Rule 4 read with section 40, no notification either under s.4 ,,or sec.
6 could be validly issued; 601 (2) that sec.
6 notification was issued without complying with Part VII of the Act and without a valid consent of the State Government as required by sec.
39 and therefore no notification either under sec.
4 or sec.
6 could be lawfully issued; (3) that the acquisition was made mala fide and without ap plication of mind to the relevant facts; (4) that the acquisition did not involve any public purpose; and (5) that the State Government was bound to give an oppor tunity of being heard to the appellants before taking decision under sec.
5A, particularly when the report of the said Master was against the acquisition.
We shall consider these propositions in the order in which they were urged.
As regards propositions 1 and 2.
the argument was that Mas ter was only a Sp.
L.A. officer but was not the Collector within the meaning of Rule 4 and therefore the inquiry held by him under that Rule and the report made consequent thereto were invalid; that even if Master can be held to have been authorised to perform the functions of the Collector he was not "specially appointed" as Collector; that the State Government had not given any direction to him to make a report as required by Rule 4 and that the notification dated October 11, 1963 did not "appoint" but simply authorised him to perform the functions of the Collector.
It is not in dispute that as required by the said Rules the State Government had apponited a Land Acquisition Committee before it issued the notification under sec.
The affidavit of Master establishes that he worked as a Sp.
L.A. officer at Baroda from December 6, 1961 to April 29 1965.
On February 11, 1963 he was appointed to officiate as Special Land Acquisition Officer, Baroda.
On October 1. 1963 the Government wrote a letter to him forwarding the application dated September 11, 1963 of the 3rd respondent Company requesting the Government to acquire the lands in question and directing him to hold an inquiry according to the said Rules and to make a report.
The letter also stated that be was being authorised separately to perform the functions of the Collector and that on such authorisation he would be competent to make the inquiry.
On the same day,the Government issued a notification under sec.
3(c) authorising him to perform the function of the Collector within Baroda District.
But on October 11, 1963 the Government issued another notification superseding the notification of October 1, 1963 and authorising all Special Land Acquisition Officers in the State to perform the functions of the Collector under the Act within the area of their respective jurisdiction.
On October 10, 1963 Master had addressed a letter to the 602 Company to supply information for his inquiry under Rule 4.
On October 22, 1963 he issued notices to 27 owners of the lands proposed to be acquired but only 10 of them appeared before him and he recorded their statements on October 31, 1963.
There is thus no doubt that Master was instructed by the State Government to hold an inquiry and to submit his report.
Rule 4 requires the Collector to make an inquiry regarding the matters stated therein, such matters inter alia being that the land requested by the Company for acquisition is not excessive, that the Company has made efforts and offered reasonable.
price to buy the land from the owners, that if the land happens to be good agricultural land, there is no other alternative land suitable for the Company 's purpose and the approximate amount of compensation which would be payable if the lands were acquired.
The Collector after making such inquiry has to submit his report to the Government.
The Government then forwards it to the Land Acquisition Committee and the Committee has to advise the Government.
Rule 4 prohibits the Government from issuing notification under section 6 unless it has consulted the Committee and considered the said report as also the report made under section 5A and unless an agreement with the Company under section 41 has been executed.
The contention was that though Master held the inquiry and made the report he had functioned not as the Collector but in his capacity as the Special Land Acquisition Officer, Baroda, and therefore the notification under sec.
4 and section 6 were invalid.
The argument was, firstly, that Rule 4 does not define "collector" and therefore the word "collector" must mean the Collector of the District and secondly, that even if Master was appointed as the Collector as defined by sec.
3(c) his appointment as Collector was not valid as he was not specially appointed to perform the functions of the Collector.
It was said that the notification dated October 11, 1963 did not "specially" appoint Master but was a general notification authorising not only, Master but all the Special Land Acquisition Officers in the State appointed not only before the date of sec.
4 notification but also those who would be appointed in future.
In our view, these contentions cannot be upheld.
Section 3(c) defines a Collector to mean Collector of the District and includes Deputy Commissioner and any officer specially appointed by the Government to perform the functions of a Collector under the Act.
Section 20 of the General Clauses Act, X of 1897 provides that where a Central Act empowers making rules, the expressions used in such rules, if made after the commencement of that Act shall have the same meaning as in the Central Act, unless there is anything repugnant in the subject or context.
There being nothing repugnant in the subject or context, the word "collector" must have the same meaning in the rules as in sec.
3(c) which includes an officer specially appointed to perform the functions of the Collector.
If therefore Master can be said to have.
608 been specially appointed to perform the functions of the Collector Linder the Act no challenge can be entertained as to his competence to make the inquiry and the report under Rule 4 of the said Rules.
Sanghi conceded that the notification dated October 1, 1963 did "specially" appoint Master as the Collector.
Baroda but argued that as that notification was superseded it would not avail the respondents and therefore the question was whether the noti fication dated October 11, 1963 can be said to have specially appointed Master as Collector.
He argued that since that notification appointed all the Special Land Acquisition Officers to perform the functions of the Collector within their respective areas the appointments made thereunder must be regarded as general and not appointments specially made and therefore it cannot be said that Master or any one of them was specially appointed as required by sec. 3(c).
The argument therefore resolves itself to what is the true meaning of the words "specially appointed".
In our view, those words simply mean that as such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be "specially appointed", that is ' appointed for the specific purpose of performing those functions.
The word "specially ' has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against a general appointment.
The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act.
It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector.
It is the appointment therefore which is special and not the person. from amongst several such officers.
Besides, sec.
15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office.
There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by his name.
Therefore even if the meaning of the word "specially" were to be that which is canvassed by Mr. Sanghi the Government could have issued separate notifications for each of the Sp.
L.A. officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.
Instead of doing that, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.
Such a notification would have the same force as a separate notification in respect of each individual Sp.
L.A. officer.
Such a notification Would mean that the Government thereby appoints each of the existing Sp. L. A. officers to perform the functions of the Collector within, their respective areas.
It is true that the notification also declares that such of the Sp.
L.A. officers as may be appointed in future are also authorised to preform the Collector 's functions.
That only means that whenever a person would be appointed as a Sp.
L.A. 604 officer for a particular area, the notification would in effect invest him at the same time with the authority to perform the Collector 's functions.
The appointment of each of these officers therefore must be held to be special and not general.
But Mr. Sanghi argued that even so the notification did not "appoint" Master but merely authorised him to perform the Collector 's functions.
In our View.
the distinction is without difference.
In the context of sec.
3(c) when an officer is authorised to perform the functions of the Collector it means that he is appointed to perfore those functions.
The clause does not contemplate a separate or an additional post.
What it means is that some officer who is already in the Government employment is authorised to work as a Collector for the purposes of the Act.
In this sense whether he is appointed or authorised to perform the Collector 's functions he would be complying with the terms of that clause.
It was then urgued that the inquiry under Rule 4 is a quasi judicial inquiry and therefore it was incumbent on Master to give an opportunity to the appellants to be heard.
The Rule however provides that the officer conducting the inquiry has to hear the Company before making his report.
Whether he has also to hear tile owners of the land or not need not be decided in these appeals as Master had in fact given such an opportunity to the appellants by serving them with notices and recorded the statements of such of them who cared to appear before him.
There is therefore no merit in that contention.
Next it was urged that the inquiry under Rule 4 has to be held after the notification under sec.
4 is issued and not before and therefore the inquiry held by Master was no , valid.
We do not find anything in Rule 4 or in any other Rule to warrant such a proposition.
The inquiry, the report to be made consequent upon such inquiry.
obtaining the opinion of the Land Acquisition Committee, all these are intended to enable the Government to come to a tentative conclusion that the lands in question are or are likely to be needed for a public purpose and to issue thereafter sec.
4 notification.
In our view, no objection to the appointment of Master to perform the functions of the Collector under sec.
3(c) or to his competence to make the inquiry and the report under Rule 4 or their legality can be validly made It follows that the consent given by the State Government for initiating acquisition proceedings was validly given and was in compliance with the provisions of Part VII of the Act and the State Government could validly issue the impugned notifications.
This disposes of Mr. Sanghi 's propositions 1 and 2.
The third proposition is that the State Government exercised the power under the Act mala fide and without applying its mind to the facts of the case.
Paragraph 10 of the petition containing the plea as to mala fides is in general terms without any particulars.
Even such of the allegations that are to be found there arc more against the 3rd respondent Company than against the State Government.
These are based on the fact that the Company had 605 sufficient land of its own and the acquisition was therefore being made so that the Company may acquire the neighbouring lands without utilising its own lands.
It is true that the Company owns.
140 acres of land.
But as the affidavit of the Company 's officer shows out of these 140 acres 48 acres are ravine lands, unfit as factory sites.
According to the Company, those lands however will be utilised for housing accommodation for its 700 workmen and for amenities for them such as play grounds, a sports club.
a recreation centre and a co operative consumer society.
Forty acres out of, the rest of the land have already been used for constructing some: of the factories ' warehouses and godowns.
As regards the balance: of 60 acres, they do not form a compact block and contain in them small pockets belonging to the appellants.
The Company 's case was that unless these pockets are acquired and these 60 acres are made, into one compact lot it would not be possible to use them as factory site.
These lands are, besides, divided by a Nal which if filled Lip would block access to the appellant 's lands.
Unless the enclaves are acquired.
the said Nal which divides the Company 's lands car,not be filled up.
A portion of the lands in question is also necessary for an approach road leading to the proposed railway siding.
Some of the land will have to be kept open as otherwise the noxious fumes omitted by the factories would prove detrimental to the: health of the neighbours.
The documents produced by Master reveal that the inquiry,.
held by him ",as on the question whether the Company was trying to acquire excessive land.
It is therefore not possible that the Government failed to apply its mind having had Master 's report before it as also the report under sec.
5A as regards the extent of land needed by the Company.
It was however arzueed though somewhat vaguely that the Company would not require as much, as 40 acres for housing its workmen and also that the Company has its own land near the railway lines which can well be used for the proposed railway siding.
No effort however was made to show that the Company would not really need 40 acres for housing purposes.
As regards the proposed railway siding also there is no data to show that the Company 's land near the railway lines would be suitable for constructing such railway siding.
The appellant 's lands appear to be near the existing goods platform.
It may be that the Government found on the basis of the reports before it that the appellants ' lands near the goods platform would be more suitable for the railway siding than the Company 's land near the railway lines.
Mr. Sanghi then contended that the fact that the Government had been trying to acquire these lands since 1962 and has been issuing one notification after another shows the exercise of the, power to acquire was mala fide.
No 1 such inference can be drawn from such a fact only.
The fact, on the other hand, that the Government cancelled its first notification on the ground that these 606 lands were not suitable for a fertiliser factory gives a clear indication that it had applied its mind and relatives the allegation of mala fide exercise of power.
The correspondence which the Company produced during the hearing of the petitions shows that as soon as the decision in the first Arora Case(1) was given the Government at once cancelled the notification in spite 'of the Company 's request to continue it.
This negatives any suspicion as to collusion between the Company and the acquiring authority.
It is true that Master 's opinion was adverse to acquisition but the Government was not bound to accept it.
However, the fact that a responsible officer of the Government gave an adverse opinion is yet another indication that he was acting independently without being influenced by the Government or the Company.
In our view, the appellants failed to establish their allegation either as to mala fide or the non application of mind by the State Government.
The third proposition of Mr. Sanghi therefore must fail.
As regards proposition No. 4, the only argument urged was that when a particular land is being already used for one public purpose, in this case the manufacture of "sagol", a building material made from lime, the legislature could not have intended to empower the Government to destroy that purpose and substitute in its place another public purpose.
We need only say that a similar argument was urged in Somavanti 's Case (2 ) and rejected by this Court.
The last proposition of Mr. Sanghi was that even though an inquiry under section 5A may be an administrative inquiry, the State Government was bound to give an opportunity to be heard to the appellants after receiving the report thereunder and before making up its mind for the purpose of issuing sec.6 notification.
It is not in dispute that during sec.
5A inquiry the appellants were heard and their objections were taken on record.
Under sec.
5A, the Collector has to hear the objections of the owner.
take them on r ecord and then submit his report to the Government.
The section also requires him to send along with his report the entire record of his inquiry which would include the objections.
The report has merely recommendatory value and is not binding on the Government.
The record has to accompany the report as it is for the Government to form independently its satisfaction.
Both are sent to enable the Government to form its satisfaction that the acquisition is necessary for a public purpose or for the Company.
It is then that sec.
6 notification which declares that particular land is needed for either of the two purposes is issued.
The Government thus bad before it not only the opinion of Master but also all that the appellants had to say by way of objections against the proposed acquisition.
The appellants therefore had an opportunity of (1) [1962] Supp. 2 S.C.R. 149, (2) 607 being heard.
Neither sec.
5A nor any other provision of the Act lays down that a second opportunity has to be given before the issuance of section 6 notification.
This contention also therefore cannot be sustained.
These were all the contentions urged before us.
As none of them can be upheld the appeals have to be dismissed.
The appellants will pay to the respondents the costs of these appeals.
(One hearing fee).
R.K.P.S. Appeals dismissed.

Output:
On October 1, 1963, the State Government issued a notification under section 3(c), authorising one M who was then the Special Land Acquisition Officer, Baroda, to perform the functions of a Collector and also directed him to hold an enquiry under the Land Acquisition (Companies) Rules on the application of the third respondent company requesting the government to acquire the appellant 's land.
In supersession of that notification, the Government issued another notification on October 11, 1963 authorising all Special Land Acquisition Officers to perform the functions of the Collector under the Act within the area of their respective jurisdiction.
After M had made an enquiry under Rule 4, the respondent State Government issued a notification under Section 4 of the Land Acquisition Act, 1894, on August 28.
1964 in respect of the appellant 's land which was stated to be required for the establishment of a factory by the third respondent company.
Objections filed by the appellants in an enquiry under section 5A were rejected and the State Government thereafter issued a notification under section 6 on October 18, 1965.
The appellants challenged the notification by writ petitions but these were, dismissed by the High Court.
In the appeal to this Court, it was contended on behalf of the appellants, inter alia.
(i) that M was only a Special Land Acquisition Officer and not the Collector within the meaning of Rule 4; in any event the notification of October 11, 1963 did not "specially" appoint him but was a general notification authorising all the Special Land Acquisition Officers in the State appointed not only before the date of section 4 notification but also those who would be appointed in future,.
furthermore, the notification did not "appoint" but simply authorised him to perform the functions of the Collector, the State Goverrunent had not given any direction to him to make a report as required by .Rule 4; therefore the enquiry held by him under that Rule and the ,report made was invailed and consequently no notification either under section 4 or section 6 could be validly issued; (ii) that the section 6 notification was issued without complying with Part VII of the Act and without the valid consent of the State Government as required by section 39; (iii) that the acquisition was made mala fide and without application of mind to the relevant facts: (iv) that the acquisition did not involve any public purpose: and (v) that the State Government was bound to give an opportunity of being heard to the appellants before taking a decision under section 5A particularly when the report made by M was against the acquisition, 598 HELD: Dismissing the appeal.
(i) No objection to the appointment of M to perform the functions of the Collector under section 3(c) or to his competence to make the enquiry and the report under Rule 4 or their legality can be validly made.
It follows that the consent given by the State Government in initiating acquisition proceedings was validly given and was in comp liance with the provisions of Part VII of the Act and the State Government could validly issue the impugned notifications.
[604G] There being nothing repugnant in the subject or context, the word "Collector" must, by virtue of section 20 of the , have the same meaning in the Rules as in section 3(c) of the Act which includes an officer specially appointed to perform the functions of the Collector.
[602H] The words "specially appointed" simply mean that as a Sp.
L.A. Officer is not a Collector and cannot perform the functions of a Collector under the Act.
he has to be "specially appointed", i.e. appointed for the specific purpose of performing those functions.
The word "specially" has therefore reference to the special purpose of appointing and is not used to convey the sense of a special as against a general appointment.
Furthermore, section 15 of the General Clauses Act provides that where a Central Act empowers an authority to appoint a Person to Perform a certain function such power can be exercised either by name or by virtue of office.
[603C F] In the context of section 3(c) when an officer is authorised to perform the functions of the Collector, it means that he is appointed to perform those functions.
The distinction between the two is without a difference.
[604B] There is no force in the contention that the enquiry under rule 4 has to be held after the notification under section 4 and not before.
There is nothing in rule 4 or any other rule to warrant such a proposition.
(ii) On the facts, the appellants had failed to establish their allegation either as to mala fides or the non application of mind by the State Government.
(iii) There is no force in the contention that when the appellant 's lands were already being used for the manufacture of a building, material and that was also a public purpose, the legislature could not have intended to empower the Government to destroy that purpose and substitute in its place another Public purpose.
[606D] Arora Case, [1962] Supp, 2 'S.C.R. 149: referred to.
(iv) It is not disputed that during the section 5A enquiry the appellants were heard and their objections were taken on record.
The record of the enquiry is required under section 5A to be sent to the Government so as to enable the Government to decide whether the acquisition is necessary for a public purpose or for a company.
The Government thus had before it not only the opinion of M but also all that the appellants had to say by way of objections against the proposed acquisition.
The appellants therefore had an opportunity, of being heard.
Neither section 5A nor any other provision of the Act lays down that a second opportunity has to be given before the issuance of the Section 6 notification.
[606F 607A]


Input:
Appeal No. 1864 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated August 21, 1967 of the Andhra Pradesh High Court in Election Petition No. 13 of 1967.
P. Ram Reddy and A.V.V. Nair, for the appellants.
681 D. Narsaraju, R.V. Pillai and A. Sitarama Reddy, for respondent No. 1 G. Narayana Rao, for respondent No. 2.
The Judgment of the Court was delivered by Mitter, J.
On April 6, 1967 the appellants before us, fled an Election Petition in the High Court of Andhra Pradesh challenging the election of the first respondent, B.N. Reddi, to the Andhra Pradesh Legislative Assembly from the Kollapur Constituency inter alia on the ground of corrupt practices committed by him, his election agent, polling agents and other workers mentioned in the schedule to the petition with his consent and praying for a declaration that the second respondent, K. Ranga Das, was duly elected from the said constituency.
The third respondent was another candidate who had contested the election but had fared very badly.
The first respondent secured 25,321 votes at the election overtopping the votes polled by the second respondent by approximately 1600.
The petitioners stated in paragraph 5 of the petition that one ' V.K. Reddi who had firfiled his nomination paper had been made to withdraw his Candidature by the first respondent on payment of an illegal gratification of a sum of Rs. 10,000/ .
This allegation was repeated in paragraph 10.
The first respondent was also charged with other corrupt practices m diverse other paragraphs of the petition.
The first respondent put in his written statement on 28th June, 1967; the second respondent put in his counter affidavit on June 26, 1967.
The issues were settled on July 24, 1967.
On August 4, 1967 the petitioners filed Application No. 161/1967 for impleading V.K. Reddi.
Thereafter they wanted to withdraw that application when the examination of witnesses had commenced.
On August 7, 1967 this application was dismissed.
On August 8, 1967 the first respondent 'filed Application No. 169/1967 praying for dismissal of the petition on the ground that although V.K. Reddi had been charged with corrupt practices he had not been impleaded as a party to the petition which was liable to be dismissed under the provisions of section 82(b) of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act ') in compliance with section 86(1).
The election petitioners filed Application No. 187 of 1967 for withdrawing the allegations against V.K. Reddi, or, in the alternative, to implead him as a respondent.
They also filed Application No. 186/1967 for condoning the delay in seeking to implead V.K. Reddi in Application No. 187/1967.
The second respondent filed a number of applications of which it is necessary to take note of a few only.
Application No. 174/1967 was filed for condoning the delay in seeking to implead V.K. Reddi in Application No. 175/1967.
Application No. 175/1967 was for the purpose of 682 impleading V.K. Reddi as a party respondent to the election petition.
The learned trial Judge held that the allegations contained in election petition amounted to an imputation of corrupt practice to V.K. Reddi and although of the view that the prayer in Application No. 169/1967 for condonation of delay was allowable in suitable cases, he felt himself bound by the decision of Kumarayya, J. in Applications Nos.
150 155/1967 in Election Petition No. 11 of 1967 and dismissed the amendment application No 169/1967.
Before us a faint attempt was made to argue that the allegation against V.K. Reddi did not amount to a charge of corrupt practice but that it was the first respondent who was guilty of such a practice by making the payment of illegal gratification.
The argument has only to be set down to be rejected.
In paragraph 5 of the petition, the definite averment was that V.K. Reddi had been made to withdraw his candidature by the first respondent on payment of an illegal gratification of Rs. 10,000/ .
If the payment of Rs. 10,000/ amounts to an illegal gratification the taint attaches not only to the payer, the first respondent, but also to the payee,.
V. K. Reddi.
The second point urged was that the learned Chief Justice 's view in regard to the power of condonation of delay in impleading V.K. Reddi was correct and although he could not give effect to his own view because he felt himself bound by the decision of Kumarayya, J. we ought to accept the appeal and uphold his view.
This argument was developed as follows.
An election petition was in essence an application to the High Court for the purpose of the Indian and as such section 29(2) of the Act of 1963 was applicable to such petitions drawing in its chain the applicability of section 5 of the Act giving the court the power to admit the same if it was satisfied that the applicant had sufficient cause for not preferring the application within the prescribed period of limitation.
The Act as it now stands provides by section 80A that the court having jurisdiction to try an election petition shall be the High Court.
Under section 81 (1 ) "an election petition calling in question any election may be presented on one or more of the grounds specified in sub section
(1 ) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty five days, but not earlier than, the date of election of the returned candidate . " section 82 runs as follows : "A petitioner shall join as respondents to his petition 683 (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.
" Section 83 lays down inter alia that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of such practice.
Section 86( 1 ) provides that: "The High Court shall dismiss an election petition which does not comply with the provisions of section 81, or section 82 or section 117.
" The last mentioned section relates to the giving of security for costs.
Sub section
(4) of section 86 gives any candidate not already a respondent, a right to be joined as one upon application to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made.
Under sub section (5) "The High Court may, upon such terms as to.
costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
" Sub sections
(6) and (7) aim at the speedy disposal of the election petitions.
Section 87 ( 1 ) provides that: "Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits :" The proviso to the sub section gives the High Court discretion to refuse, for reasons to be recorded in writing, to examine any witness.
Sub section
(2) makes the provisions of the Indian Evidence 684 Act applicable in all respects to the trial of an election petition.
Section 98 shows the nature of the order to be made by the High Court at the conclusion of the trial of an election petition.
Section 99 makes it obligatory on the High Court while making an order under section 98 in cases where any charge is made in the petition of any corrupt practice having been committed at the election, to record a finding whether any corrupt practice has or has not been proved to have been committed at the election and the nature of that corrupt practice as also the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice.
There is.
a proviso to the section which lays down that a person who is not a party to the petition shall not be so named unless he has been given notice to appear before the High Court and to show cause to the contrary.
In case he does so, he is further given the right to.
cross examine any witness already examined by the High Court and to give evidence in his defence.
Entry 72 of List I of the Seventh Schedule vests in Parliament the exclusive power to make laws with respect to elections to Parliament, to the Legislatures of States and to the offices of President and Vice President as also the Election Commission.
Under article 329(b) lm15 "Notwithstanding anything in this Constitution (a) (b) no election to either House of Parliament or to the House of either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
" In order to determine whether an election petition launched for the purpose of contesting the validity of an election is an application within the meaning of the Indian , it is necessary to examine the nature of the rights and liabilities involved therein and of the provisions of law which govern such determination.
The right of citizens to elect representatives of their choice either to the House of the People or to a Legislative Assembly of a State, the process of election beginning from the notification of general elections and the nomination of candidates, the general procedure at elections, taking of the poll and counting of votes and the publication of election results are all matters dealt with and covered by different provisions of the Act.
The right to elect is statutory and so are all the processes connected with the election.
There is no element of any common law right 685 in the process of election.
Part VI of the Act deals with disputes regarding election.
The second chapter of this Part shows how elections may be called in question, which courts have jurisdiction to try election petitions, how such a petition is to be presented, who are to be parties to the petition, what are to be the contents of the petition as also the relief which may be claimed by the petitioner.
The third chapter of this Part deals with the trial of election petitions.
The first section of this group makes it incumbent on the High Court to, dismiss an election petition straightaway if it does not comply with certain statutory requirements.
The next section is a guide to the procedure to be adopted by the High Court in the trial of an election petition.
This section does not equate an election petition with a suit but merely shows that subject to the provisions of the Act and.
of any rules made thereunder, the trial is to conform as nearly as possible to the trial of a suit under the Code of Civil Procedure.
This means that (a) the contestants have a right to file written statements, (b) both parties must disclose the documents on which they reply; (c) they must examine witnesses orally, if necessary, to substantiate the charges leveled or the defenses raised in the petition; and (d) the evidence to be adduced must comply with the requirements of the Indian Evidence Act.
There are however certain limitations as to the questions which may put to a witness contained in sections 94 and 95; the returned candidate has a right to recriminate under the provisions of section 97.
The High Court does not pass a decree as in the case of a suit but has to make an order in terms of section 98 which gives the nature of the orders to be made.
The High Court has to communicate the substance of its decision to the Election Commission and the Speaker or the Chairman as the case may be of the House of the People or of the State Legislature.
Chapter IV deals with withdrawal and abatement of election petitions.
Chapter IV A deals with appeals from the decisions of the High.
Court and Chapter V deals with costs and security for costs.
The above brief analysis is sufficient to show that the trial of an election petition is not the same thing as the trial of a suit.
As was pointed out by this Court in the case of Kamaraja Nadar vs Kunju Thevat(1), the provisions of the Act "go to show that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law . " The Court also emphasised on the peculiar character of an election petition by quoting from the observations of A. Sreenivasan vs Election Tribunal, Madras(2).
Reference was also made.
to the Tipperary case(3) where Morris, J. said: (1) at 596.
(2) 11 E.I. R. 278 at 293.
(3) 686 " . a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the ' principal party interested.
" This aspect of an election petition was emphasised again in the ,case of Basappa vs Ayyappa(1) where it was held that the provisions of O. 23 r. 1 of the Code of Civil Procedure do not apply to election petitions and it would not be open to a petitioner to withdraw or abandon a part of his claim once an election petition was presented to the Election Commission.
Even though section 87 ( 1 ) of the Act lays down that the procedure applicable to the trial of an election petition shall be like that of the trial of a suit, the Act itself makes important provisions of the Code inapplicable to the trial of an election petition.
Under O. 6 r. 17 C.P.C. a court of law trying the suit has very wide powers in the matter of allowing amendments of pleadings and all amendments which will aid the court in disposing of the matters in dispute between the parties are as a rule allowed subject to the law of limitation.
But section 86(5) of the Act provides for restrictions on the power of the High Court to allow amendments.
The High Court is not to allow the amendment of a petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
With regard to the addition of parties which is possible in the case of a suit under the provisions of O. 1 r. 10 subject to the added party 's right to contend that the suit as against him was barred by limitation when he was irapleaded, no addition of parties is possible in the case of an election petition except under the provisions of sub section
(4 ) of section 86.
Section 82 shows who are necessary parties to an election petition which must be filed within 45 days from the date of election as laid down in section 81.
Under section 86(1) it is incumbent on the High Court to dismiss an election petition which does not comply with the provisions of section 81 or section 82.
Again the High Court must dismiss an election petition if security for costs be not given in terms of section 117 of the Act.
It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation.
But an election petition stands on a different footing.
The trial of such a petition and the powers of the court in respect thereof are all circumscribed by the Act.
The Indian of 1963 is an Act to consolidate and amend the law of limitation of suits and other proceedings and for purposes connected therewith.
The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless the application thereof has been excluded by any enact (1)[1959] S.C.R. 611.
687 ment: the extent of such application is governed by section 29(2) of the .
In our opinion however the cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian .
Before the recent amendment of the Representation of the People Act, election petitions had to be presented to the Election Commission and it was the Commission which was empowered under section 85 to dismiss the petition if the then provisions of section 81, section 83 and section 117 were not complied with.
It is only when the petition was not so dismissed that the Election Commission had to appoint an Election Tribunal for the trial of the petition.
Under section 85 the Commission had power to admit a petition presented after the prescribed period if it was satisfied that there was sufficient cause for the failure.
Section 90(4) of the Act of 1951 empowered the Tribunal to dismiss an election petition even if it had not been so dismissed by the Election Commission.
The Act as amended in 1966 gives the jurisdiction to try an election petition to the High Court of a State.
The provision for appeal in section 116 A was introduced in the Act for the first time in 1956 providing for an appeal from every order of the Tribunal under section 98 or section 99 to the High Court of the State in which the Tribunal was situate.
By sub section
(2) of section 116 A of the Act as amended in 1956 the High Court was, subject to the provisions of the Act, to have the same powers, jurisdiction and authority and was to follow the same procedure with respect to an appeal ' under this Chapter (Chapter IV A) as if the appeal were an appeal from an original decree passed by a court situate within the local limits of its civil appellate jurisdiction.
Sub section
(3) fixed the time limit for filing the appeal.
to a period of 30 days from the date of the order complained of.
The proviso to this sub section gave the High Court discretion to entertain an appeal after the expiry of the period of 30 days, if it was satisfied that the appellant had sufficient cause for not preferring the appeal within such period.
This section was amended again in 1966 and section 116 A( 1 ) now provides for an appeal from an order of the High Court under section 98 or section 99 to the Supreme Court on any question, whether of law or fact.
Sub section
(2 ) of the new section is on the same lines as the old sub section
(3) excepting that the Supreme Court has been substituted for the High Court and the High Court for the Tribunal in the old section.
While the Act of 1956 was in force this Court had to go into the question as to whether section 29(2) of the of 1908 would be applicable to an appeal preferred to the High Court 688 from an order of the Tribunal.
In Vidyacharan Shukla vs Khubchand Baghel (1) the main question before this.
Court was whether for the purpose of computing the period of 30 days prescribed under section 116 A(3) of the Act, the provisions, of section 12 of the could be invoked.
The High Court had proceeded on the basis that section 29(2) applied to the case of appeals under section 116 A of the Act and on that basis had held that the appeal was within time if it was 'computed after making the deductions permitted by section 12 of the .
There was a good deal of discussion in the case about the scope and extent of section 29(2).
We are no.t concerned with that in the present appeal.
According to the learned Chief Justice and Ayyangar, J. "even on the narrowest construction of the words 'different from those prescribed therefor in the first schedule ' occurring in the opening part of section 29(2), the exclusion of time provided for by article 12 of the would be permissible in computing the period of limitation for filing the appeal to the High Subba Rao, J. (as he then was) took the view that section 116 A did not provide an exhaustive and exclusive code of limitation and did not exclude the general provisions of the .
The majority view was that though the fight of appeal was conferred by section 116 A of the Act of 1951 it was still an appeal under the Code of Civil Procedure and to attract article 156 of the First Schedule to the , it was not necessary for an appeal to be an appeal under the Code of Civil Procedure in that the right to prefer the appeal should be conferred by the said Code.
In our view.
sub section
(2 ) of section 116 A empowered the High Court to treat an appeal under that section presented to it as if it were an appeal from an original decree passed by a court within the local limits of its civil appellate jurisdiction.
Consequently, the jurisdiction, powers and authority of the High Court would be the same as in an appeal from an original decree of a lower court.
In other words, in entertaining the appeal and disposing of it the High Court could exercise the same powers as were available to it in an appeal from a decree of a lower court.
To such an appeal the powers of the High Court under section 12 of the would necessarily 130 attracted, Mr. Ram Reddy attempted to press that decision to service in the appeal before us.
In our view, the situation now obtaining in an appeal to this Court from an order of the High Court is entirely different.
There is no section in the Act as it now stands which equates an order made by the High Court under section 98 or Is.
99 to a decree passed by a civil court subordinate to the High (1) ; 689 Court.
An appeal being a creature of a statute, the rights conferred on the appellant must be found within the four corners of the Act.
Sub section
(2) of the present section 116 A expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days.
No right is however given to the High Court to entertain an election petition which does not comply with the provisions of section 81, section 82 or section 117.
It was argued that if a petition were to be thrown out merely because a necessary party had not been joined within the period of 45 days no enquiry into the corrupt practices alleged to have been committed at certain elections would be possible.
This is however a matter which can be set right only by the Legislature.
It is worthy of note that although the Act has been amended on several occasions, a provision like section 86(1) as it now stands has always been on the statute book but whereas in the Act of 1951 the discretion was given to the Election Commission to entertain a petition beyond the period fixed if it was satisfied as to the cause for delay no such saving clause is to be found now.
The legislature in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with a dismissal of the petition.
It is to be noted however that even though the Indian does not apply to an election petition provisions like sections 9 and 10 of the providing for computation of time which are in pari materia with sections 12( 1 ) and 4 of the would apply to such a petition.
The last submission of counsel for the appellants was that the failure to implead V.K. Reddi did not make the election petition liable to dismissal under section 86 (1 ).
It was argued that after V.K. Reddi had withdrawn from contest he was no longer a candidate within the meaning of section 79(b) or 82(b) of the Act.
In our opinion, it is not open to him to argue that point in view of the decision of this Court in Hat Swarup vs Brij Bhushan(1).
It is to be noted that this decision does not stand by itself.
In Mohan Singh vs Bhanwarlal(2) an attempt was made to get the election petition dismissed in limine on the ground that one of the candidates at the election, namely, Himmat Singh, against whom allegations of corrupt practice were made in regard to withdrawal of his candidature was not joined as a respondent.
It was held by this Court that a mere offer to help in getting employment was not an offer of gratification within the meaning of section 123(1)(B) of the Act.
The Court however observed: "If therefore the petition contained any imputation of corrupt practice made against Himmat Singh, it could (1) ; (2) ; 690 not be regarded as properly constituted unless he was impleaded as a respondent, for, by the defmition of "candidate" in section 79(b), the expression "any other candidate" in section 82(b) must include a candidate who had withdrawn Iris candidature." (see at p. 18 ).
Reference may also be made to Amin Lal vs Hunna Mal(1).
It was however sought to be argued that section 99 enjoined upon the High Court to name all persons who had been proved at the trial to have been guilty of any corrupt practice and where such a person who not a party to the petition, he was not to be so named unless he had been given notice to appear before the High Court and asked to show cause why he should not be so named and if he chose to appear, he was to be given an opportunity of crossexamining any witness already examined by the High Court and of calling evidence in his own defence and of being heard.
This provision, to our mind, only enjoins upon the High Court to give an opportunity to a person sought to be held guilty of a corrupt practice if he was not a party to the petition, but it does not apply to a person who is a necessary party thereto.
An obvious case for the use of powers.
under section 99 would be that of an agent guilty of commission of a corrupt practice with the consent of the candidate.
Such a person would not be a necessary party to the petition but he must have an opportunity of showing cause and of being heard before the High Court can name him as guilty of a corrupt practice while making an order under section 98.
In our opinion, the appeal has no merits and must be dismissed with costs.
G.C. Appeal dismissed.

Output:
The election of the first respondent to the Andhra Pradesh Legislative Assembly at the General Election hold in 1967 was challenged by the appellants in an election petition.
Various corrupt practices were alleged appellants to have been committed by the first respondent, his agents and supporters.
One of these was that the first respondent paid a bribe to one R who had also filed nomination papers, in order to secure his withdrawal as a candidate.
After the issues were framed the appellants made an application to the Court for impleading R but it was dismissed.
The first respondent then filed an application under section 86(1) praying for the dismissal of the election petition on the ground that there had been compliance with section 82(b) of the Representation of the People Act, 1951 inasmuch as R against whom corrupt practice had been alleged had not been made a party.
The appellants filed an application seeking to with draw the allegation against R and in the alternative to implied him as are not.
They also prayed for condonation of delay in making the respondent.
The learned Judge of the High Court trying the election petition dismissed the aforesaid applications and refused to condone the delay.
The ' appellants came to this Court.
The contentions in the appeal were: (i) that the allegation against R did not amount to an allegation of corrupt practice, (ii) that section 5 and section 29(2) of the were applicable to the case and the High Court and this Court had power to condone the delay made by the election petitioner in impleading a necessary party, (iii) that R, having withdrawn from the contest was not a 'candidate '.
and (iv) that the procedure under section 99 ought to have been followed in respect of R. HELD: (i) The taint of illegal gratification attaches not only to the payer but also to the payee.
It could not therefore be accepted that the allegation against R that he had received illegal gratification did not amount to corrupt practice.[682 C D] (ii) The plea for condonation of delay in impleading R could not be accepted.
It is well settled that amendments to a petition in a civil proceeding and the addition of parties to such a proceeding are generally possible subject to the law of limitation.
But an election petition stands on a different footing.
The trial of such a petition and the powers of the court in respect ' thereof are all circumscribed bY the Representation of the People Act.
The Indian of 1963 is an Act to consolidate and amend the law of limitation 67f suits and other proceedings and for 680 purposes connected therewith.
The provisions of this Act will apply to all civil proceedings and some special criminal proceedings which can be taken in a court of law unless the application thereof has been excluded by some enactment: the extent of such application is governed by section 29(2) of the .
However the cannot apply to proceedings like an election petition inasmuch as the Representation of the People Act is a complete and self contained code which does not admit of the introduction of the principles or the provisions of the 'law contained in the Indian .
[686 H 687 B] Kamaraja Nadar vs Kunju Thevar, and Basappa vs Ayyappa, ; applied.
A. Sreenivasan vs Election Tribunal, Madras, 11 E.L.R. 278 and Tipperary case, (1875) 30 'M & H. 19, referred to.
After the amendment of the Representation of the People Act in 1966 there is now no section in the Act which equates an order made by the High Court under section 98 or section 99 to a decree passed by a civil court subordinate to the High Court.
An appeal being a creature of statute, the rights conferred on the appellant must be found within the four corners of the Act.
Sub section
(2) of the present section 116 A expressly gives this Court the discretion and authority to entertain an appeal after the expiry of the period of thirty days.
No right is however given to the High Court to entertain a petition which does not comply with the provisions of section 81, section 82 or section 117.
Any hardship resulting from this situation is a matter which can be set right only by the Legislature.
The Legislature in its wisdom has made the observance of certain formalities and provisions obligatory and failure in that respect can only be visited with a dismissal of the petition.
[688H 689 C] Vidyacharan Shukla vs Khubchand Baghel, [1964] 6 S.C.R. 129, distinguished.
O bitter: Even though the Indian does not apply to an election petition provisions like section 9 and section 10 of the providing for computation of time which are in pari materia with sections 12 (1) and 4 of the would apply to such a petition.
[689 E] (iii) A candidate who has withdrawn from the election remains a 'candidate ' within the meaning of section 79(b) and section 82(b) of the Act.
[689 F] Har Swarup vs Bril Bhushan, [1967] IS.C.R. 342, Mohan Singh vs Bhanwarlal, ; and Amin Lal vs Hunna Mat ; relied on.
(iv) Section 99 only enjoins upon the High Court to give an opportunity to a person sought to be held guilty of a corrupt practice if he was not a party to the petition, but does not apply to a person who is a necessary party.
[690 C D]