judgement:
ivil Appeal No. 158 of 1954.
Veda Vyas, (section K. Kapur and Ganpat Rai, with him), for the appellants.
M. C. Setalvad, Attorney General for India (.ill.
N. Phadke and Naunit Lal, with him), for respondent No. 1. 1955.
May 2.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the Judgment and order of the Election Tribunal, Akola, Madhya Pradesh, dated the 1st May, 1953, dismissing the election petition filed by the appellants.
It relates to the election for the Akola Constituency of the State Assembly of Madhya Pradesh which was held on the 13th December, 1951, and the result of which was notified in the Gazette on the 4th April, 1952.
The two appellants are the electors of the said constituency.
The first respondent was the successful candidate at the election.
Respondents, Nos. 2, 3 and 4 were the other three candidates who, having been validly nominated went to the polls but were defeated.
The appellants filed the election Petition under section 80 of the Representation of the People Act, 1951 (Act XLIII of 1951) (hereinafter referred to as the Act ' for setting aside the election on various allegations.
The Election Commission admitted the petition after condoning the delay under the proviso to section 85 of the Act and thereupon constituted a Tribunal for the trial of the petition at Akola by notifications dated the 30th July, 1952, and 22nd September 1952.
In due course respondent No. I appeared and filed his written statement on the 6th October, 1952, and the petitioners filed their reply thereto on the 16th October, 1952.
With reference to these pleadings, the Tribunal was of the opinion that it was advisable to frame certain preliminary issues and to dispose of the same before entering on the 431 trial of the case on its merits.
Accordingly, nine pre liminary issues were framed.
(2) Whether there was sufficient cause for presentation of the petition one day out of time.
(3) Whether the petition was defective for non joinder of certain parties as respondents.
(4) Whether the petition is defective for want of proper verification.
(5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto.
The Tribunal found only the first of the above points in favour of the petitioners by a majority.
But in respect of the other four points, it held against the petitioners unanimously.
It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.
Before dealing with the merits of the appeal, it may be mentioned that at an early stage of these proceedings before the Tribunal, an objection was taken to the composition of the Tribunal on the allegation that one of the Members, Shri A. section Athalye was not competent to be a Member thereof on account of his alleged bias in favour of the first respondent.
The bias was sought to be made out by showing that shortly before the election, Shri Athalye had written a letter to the 1st respondent offering to assist him in his election campaign.
On objection being taken, the Tribunal stayed its hands for a preliminary decision of that question.
Meanwhile, the petitioners took proceedings in the High Court for the quashing of the constitution of the Tribunal on the above ground by means of an application under article 226 of the Constitution.
That application was dismissed after hearing both sides.
Thereupon the petitioners moved this Court for special leave against the order of the High Court.
But this Court declined to grant leave.
But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened.
On the other side, the learned Attorney General for the 1st respondent attempted to reopen before us the question as to whether the petition was presented to the Election Commission by an authorised person, which as stated above, was found against him by a majority of the Tribunal.
The ground on which he attempted to reopen this question was that the finding was based on a wrong view as to the burden of proof.
We were not prepared, however, to permit this finding of fact to be reopened in this appeal on special leave, irrespective of the question whether the burden of proof was rightly laid on the petitioners.
The only points, therefore, that have been argued before us are whether the view taken by the Tribunal with reference to the following questions, viz. (1) limitation, (2) joinder of parties, (3) verification, and (4) specification of particulars of corrupt practices in Schedule A attached to the petition, is correct, and if so, whether the same entailed dismissal of the petition.
The questions may be taken up one after the other.
LIMITATION:As stated above, the petition was filed on the 19th April, 1952, admittedly one day beyond time.
On the 28th April, 1952, the petitioners filed also an application for condonation of delay setting out the reasons for the same.
In paragraphs 3, 4 and 5 thereof the circumstances under which the delay is said to have occurred were set out as follows: "3.
The applicants were under the belief that Notice under Rule 113 of the Rules framed under the above Act was published on 5th April, 1952, in the official Gazette of the State of Madhya Pradesh.
They felt therefore that their petition was duly presented within 14 days as prescribed by Rule 119.
Applicants, however, learn that actually the Notice under Rule 113 was published in the Official Gazette of 4th April, 1952.
It therefore appears that there was a delay of 433 one day in the representation of the election petition.
This delay occurred under the following circumstances: 4.
The applicants prepared their election petition on the 17th April, 1952.
They sent the said petition with Shri P. B. Gole, Senior Advocate, Akola, with a written authority to present the petition through any person of his choice at Nagpur on the 18th April.
They also sent with Shri Gole Rs. 1,000 for being deposited in the Government Treasury at Nagpur as required by section 117 of the Act and to obtain Treasury receipt for security of costs to be filed with the petition.
The applicants were under the belief that an officer must have been appointed by the Election Commission under section 81 of the Act to whom election petitions could be represented for the State of Madhya Pradesh at Nagpur.
Accordingly Shri Gole left Akola for Nagpur by the 1 Down Nagpur Mail, reaching Nagpur at about 9 30 A.M. on 18th April, 1952.
Mr. Gole caused the deposit of Rs. 1,000 security for costs to be made in the Government Treasury at Nagpur through Mr. Sidhaye, Advocate, Nagpur, and obtained the necessary Government Treasury receipt on the 18th April, 1952.
He then made enquiries about the officer who may have been appointed to receive the election petitions.
He con sulted R. section Rangole, who was attached to the Election Office at Nagpur.
On enquiries Shri Gole learnt that there was none at Nagpur, who was authorised to receive election petition under the Act.
Under these circumstances Shri Gole booked a seat in the Night Plane for Delhi and flew to Delhi on the 18th and reached there on the morning on 19th April, 1952.
On 19th April Shri Gole caused the petition to be presented to the Secretary to the Election Commission".
The explanation thus furnished was accepted by the Election Commission as appears from the intimation to the petitioners by letter dated the 30th July, 1952.
The Tribunal was of the opinion that notwithstanding the order of the Election Commission condoning the delay and admitting the petition, it was free to 434 reconsider the question by virtue of the powers vested in it under section 90(4) of the Act.
In this view it went into the merits of the explanation furnished and came to the conclusion that the petitioners were negligent and that the delay, even of one day, could not be condoned.
It accordingly held that the petition was liable to be dismissed as barred by time.
Now, apart from the merits of the sufficiency of the cause for delay, the question as to whether, notwithstanding the condonation of the delay by the Election Commission., it was open to a Tribunal to reconsider the matter by virtue of section 90(4) of the Act, is now covered by the decision of this Court reported in Dinabandhu vs Jadumoni(1).
It was therein held that it was not open to the Tribunal to reconsider the matter in such a case.
The conclusion of the Tribunal, therefore, on this point cannot be maintained.
The learned Attorney General attempted to argue that the decision of this Court referred to above was obiter as regards the legal point and required further consideration.
But we were not prepared to permit that question to be reopened.
We were also not satisfied that there was any adequate reason for the Tribunal to interfere with the view taken by the Election Commission condoning the delay of one day on the explanation furnished to it.
This explanation has not been found, even by the Tribunal, to be
JOINDER OF PARTIES: The objection as to joinder of parties arises as follows.
Three persons by name Shri Sohoni, Shri Kulkarni, and Shri Kothkar were nominated as candidates at the election.
Their nominations were found to be in order on scrutiny by the Returning Officer.
But within the time allowed, these three withdrew from the elections under section 37 of the Act.
The petitioners, while they impleaded as respondents the three unsuccessful candidates who went to the polls, did not implead these three persons.
It has been argued before us that this view is erroneous and that persons who filed their nominations and who withdrew from the contest within the prescribed time in spite of their nominations having been found to be in order on scrutiny by the Returning Officer, cannot be said to fall within the category of "candidates duly nominated at the election".
In support of this contention two decisions Sitaram vs Yograjsing(1) and Sheo Kumar vs V. G. Oak(2) have been cited.
These three decisions have treated the decision of the question as depending on a construction of the phrase "at the election" in section 82 of the Act.
The Bombay and Allahabad cases hold that this phrase confines the necessary parties under this section to those who were candidates for the actual poll, while the Patna High Court takes the view that the phrase "at the election" has no such limiting significance.
It appears to us to be unnecessary and academic to go into this judicial controversy having regard to the decision of this Court in Jagan Nath vs Jaswant Singh(4).
If we were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase "at the election" but on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose, if any, of the requirement under section 82 as to the joinder of parties other than the returned candidate.
We are, however, relieved from this, since it has been decided in Jagan Nath vs Jaswant Singh(4) that even if any of the necessary parties other than the returned candidate has not been (1) A.I.R. 1953 Bombay 293.
(3) A.I.R. 1954 Patna 225.
(2) A.I.R. 1953 All. 633.
(4) ; 436 impleaded, the petition is not liable to be dismissed in limine on that sole ground but that it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.
In view of this ruling the decision of the Tribunal on this point also cannot be maintained.
The relevant provision in the Civil Procedure Code referred to herein is Order VI, rule 15, clauses (2) and (3), which are as follows: "(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed".
In the present case the verification of the petition as well as the schedule of particulars of corrupt practices are each signed by both the petitioners and there is now no dispute about it.
The verification clause in the petition is as follows: "The above named applicants hereby affirm that the contents of the above petition are true to information received from the press reports and several other electors and believed by them to be true.
Signed and verified at Akola on The verification clause relating to the particulars of corrupt practices in Schedule A is as follows: "The above named applicants affirm that the contents in this schedule are true to information received and believed by us to be true.
Signed and verified at Akolo, on 437 In the view of the Tribunal there were two defects in these verifications.
They do not refer to any numbered paragraphs nor do they bear the dates on which they were signed.
In the view of the Tribunal the petition was liable to dismissal for non compliance with the specific provision in the Act in this behalf.
That the verification neither in the petition nor in the schedule of particulars bears any date is not disputed.
But it is contended that the view taken by the Tribunal in so far as it was of the opinion that the verifications do not refer to any numbered para graphs is unsustainable.
It is pointed out that the statements in the verification were clearly meant to convey that the various allegations in the petition and schedule were, in their entirety, based on information and belief.
We agree with this contention.
It is to be noticed that a verified pleading is different from an affidavit which., by virtue of Order XIX, rule 3, is specifically required to be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated).
But there is notand in the nature of things there cannot be any such limitation for pleadings.
Hence it became necessary in the verification of a pleading to demarcate clearly between the two.
The allegations in the petition in this case purport to be based only on informa tion.
Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect.
The verifications are accordingly defective only as regards the requirement of the dates thereof.
The question is whether the petition is liable to dismissal on this ground.
Though there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss 438 an application on the sole ground of absence of date of verification.
In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.
PARTICULARS OF CORRUPT PRACTICES: The objection is based on section 83(2) of the Act which is as follows: "The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice".
The objection is that the particulars of the instances furnished in Schedule A to the petition are all of them vague and not in compliance with the above provision.
The list of particulars is as follows: " SCHEDULE "A".
List of particulars of instances referred in the accompanying petition.
That in the month of December, 1951, respondent No. 1 has been to the premises of Akola Shree Gurudwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book 'Granth Saheb ' on the 7th day of the death of daughter of one Sardar.
Suratsingb.
At this meeting respondent No. 1 canvassed for votes for himself and paid Rs. 201/ , apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola Constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election.
Respondent No. 1 was guilty of bribery within the meaning of that term in section 123 of the Representation of the People Act. ' Similar instances of giving illegal gratifications for securing votes of respective groups are (a) Donation to Hkariharpeth Akhada; 439 (b) Payment to Panch bungalow Committee of Bhangis of Old City.
(c) Donation to Bhaji Bazar Association.
(d) Distribution of blankets and Saries and money to voters.
At the instance of respondent No. I a meeting of workers in Berar Oil Industries a concern of Birla, was called by its manager on the eve of the election and they were threatened to vote for respondent No. 1 on pain of losing their service or suffer pecuniary loss, in case they did not vote for respondent No. 1.
Respondent No. 1 caused groups and sections of castes and communities, such as Bohara, Lohars, Marwaries, Muslims, Rajasthanies, Bhangies, to issue appeals stating that resolutions were passed for voting for respondent No. 1, coercing the voters by threats, etc., to vote for respondent No. 1 and openly canvassing on communal and caste lines and using undue influence.
Issuing pamphlets and handbills without names of printer or publisher.
At the time of counting votes in Polling Station No. 53, several folded bundles amounting to about 20 in number, of ballot papers were found in the ballot box of respondent No. 1, when it was opened for counting votes.
This was noted by the Returning Officer.
Each bundle consisted three or more than three ballot papers, folded together.
Obviously each of the bundle of these ballot papers were put in the ballot box by one person, as the ballot papers put in the ballot box by different voters could not automatically fold themselves into a compact bundle in the ballot box.
The ballot papers issued to voters were not put in the box by the voters themselves, but were illegally brought back by the voters and handed over to persons working for and on behalf of respondent No. I on payment of illegal gratification.
These ballot papers thus collected were bundled together 56 440 and put in the ballot box by persons working for and on behalf of respondent No. 1 by taking illegal gratifications.
This was done on 31st December, 1951, at Chandur by persons with the connivance of respondent No. 1. 6.
False personation of several dead voters and voters absent in Pakistan has taken place in Ward No. 12 and 15. 7.
The respondent No. 1 resorted to false propaganda.
His man announced on loud speakers from place to place that rival candidate Dr. Joglekar was of the caste and party of Godse, the murderer of M. Gandhi and a vote for him was a vote for Gandhi 's Murderer.
Another false propaganda was that Dr. Joglekar was Mishra 's man, supported by Mishra 's money.
Lectures for respondent No. 1 in public meetings, including respondent No. I have freely made these false defamatory and malicious statements against Dr. Joglekar, the rival candidate and thus prejudiced the prospects of Dr. Joglekar 's election.
Personal character and conduct of Dr. Joglekar was also falsely attached, thus prejudicing his prospects of election.
Voters were carried in hired carts at many polling stations, particularly at Kapshi Polling Station.
This was arranged by persons working for and on behalf of respondent No. I at his expense and connivance.
A written objection for police enquiry was given at Kapshi and one in Rifle Range area.
Respondent No. 1 spent lacs of rupees over his election transgressing the prescribed limit of Rs. 6,000.
He has given a totally untrue return of election expenses.
This is in contravention of law.
Mohota Mills released workers and paid them for canvassing work for respondent No. 1 on polling day.
Substitutes for these workers were engaged by the mills and they were also paid.
This was done at the instance of respondent No. I".
There can be no doubt that almost all the instances herein above set out are extremely vague and lack sufficient particulars.
Learned counsel for the appel 441 lants invited our attention to the fact that the Tribunal, while considering the question of vagueness dealt only with the instances of corrupt practices specified in paragraphs I (a),I (b), I (c), I (d), 2, 4, 5, 6, 7 and 8 and not others.
He accordingly contended that, by implication, the Tribunal was not prepared to hold that items mentioned in paragraphs 1, 3, 9 and 10 were vague.
He urged that at least these four items ' must be taken not to be vague and that there is no reason why the petitioners should not have been called upon to amend the schedule by furnishing better particulars as to the rest.
He further urged that, at any rate, they were entitled to a trial in respect of those four items of corrupt practices.
We cannot agree with learned counsel for the appellants that the items set out in paragraphs 3, 9 and 10 are not vague.
There is no specification therein of the requisite details which the Act in terms requires.
Section 83(2) requires not only what may reasonably be considered "full particulars" having regard to the nature of each allegation, but enjoins in terms that the following particulars should also be given.
(2) The date of the commission of each such corrupt or illegal practice.
(3) The place of commission of each such corrupt or illegal practice.
There can be no reasonable doubt that the requirement of "full particulars" is one that has got to be complied with, with sufficient fullness and clarification so as to enable the opposite party fairly to meet them and that they must be such as not to turn the enquiry before the Tribunal into a rambling and roving inquisition.
On a careful scrutiny of the list, in Schedule A we are satisfied that none of the items except that which is set out in paragraph I of item No. I can be said to comply with the requirements of section 83(2).
In this view of the contents of Schedule A, the contention of the learned counsel for the appellants is that even so the Tribunal should have called upon the petitioners to furnish better particulars as regards all the other items, by virtue of the ,powers conferred on it under section 83(3), and in the 442 alternative, it should have at least called upon them to substantiate the allegation in paragraph 1 in item No. 1, which was sufficiently specific and which, if made out, might have resulted in the election being set aside.
On the question whether or not the Tribunal should have called upon the petitioners to amend the schedule by furnishing better particulars, the learned Attorney General for the 1st respondent has invited our attention to the objection taken in the written statement as regards the vagueness of the particulars and to the various orders made by the Tribunal as appears from the order sheet of the case.
In the written statement of the 1st respondent paragraph 9 is as follows: "9.
(a) It is, further, submitted that the petition ought to be dismissed as it does not contain concise statement of material facts on which the petitioners rely.
Similarly the list of particulars given in the schedule or in the petition are not in compliance with section 83(2).
(b) Without prejudice to the generality of this objection, it is further submitted that para V of petition read with para VI(e) will show that the particulars given in Schedule relate to corrupt and illegal practices alleged to have been committed by respondent No. 1 and by his agents and persons working on.
behalf of respondent No. I with his connivance.
Such particulars are bad in law.
The applicants are bound to state the names of the persons who are alleged to have actually committed the corrupt or illegal practice.
(c) Paras 1 and 2 of the petition allege that there was no free election by reason of general bribery and undue influence exercised by and on behalf of respondent No. 1.
Similarly the allegation in para 2 is that the coercion was the result of manipulation by ,or at the instance of respondent No. 1.
Thus these allegations must be supported by giving the necessary particulars regarding the names, date and place of commission of corrupt or illegal practice alleged.
The allegations in paras 1 and 2 of the petition are allegations of corrupt and illegal practice within the mean 443 ing of sections 123, 124 and 125 of the Act, and are not allegations of a general character which do not implicate the candidate personally.
(d) Further by way of example, para I of the schedule, no names, date of the alleged practices are given.
Same is the case with the allegations in paras 2, 3, 4, 5, 6, 7, 8, 9 & 10.
This has not been done and the petition, therefore, ought to be dismissed on this ground".
Now the order sheet of the proceedings before the Tribunal discloses the following.
By order dated the 16th October, 1952, the Tribunal decided that the case was in the first instance to be taken up for decision on the preliminary issues.
In the interests of justice the time is granted. .
The application for amendment and for particulars to be filed five days before the date of hearing and copies thereof be given to the petitioners.
The petitioners shall be ready with their replies on the date of hearing".
The 444 latter has amended his application, to which there was no objection".
In view of the specific objection taken in the written statement and the opportunities which the petitioners had for amending the petition which the above orders disclose, there is considerable force in the contention of the learned Attorney General that the petitioners, for some reasons best known to themselves, have come forward with a somewhat irresponsible petition and that while the Court has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there was no duty cast upon the Tribunal to direct suo motu the furnishing of better particulars.
It is true that the petitioners in the reply that they filed to the written statement of the 1st respondent and in answer to the objection that the particulars as to the alleged corrupt practices were vague, said as follows: "The petitioners are prepared to give further particulars if the Tribunal is pleased to permit under section 83(3) of the Representation of the People Act,.
This reply was filed on the 16th October, 1952, which is the very date on which the first of the above orders extracted from the order sheet was passed.
It is also, true that the order dated the 17th January, 1953, shows that the respondent No. 1 at one stage, indicated an intention himself to ask for particulars.
But in a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with section 83(2) of the Act was on the petitioners.
While undoubtedly the Tribunal has, in our opinion, taken all too narrow a view of their function in dealing with the various alleged defects in the petition and in treating them as sufficient for dismissal, the petitioners are not absolved from their duty to 445 comply, of their own accord, with the requirements of section 83(2) of the Act and to remove the defects when opportunity was available.
They cannot take shelter behind the fact that neither the Tribunal nor the respondent No. 1 has, in terms, called upon them to furnish better particulars.
But all the rest were not only extremely vague but no amendment was applied for nor was an opportunity for amendment of pleadings in general, open on two occasions, availed of.
Learned counsel for the appellants urges that however this may be, there was no justification for the Tribunal dismissing the petition in toto and that it was bound to have called upon the petitioners to substantiate the first allegation by evidence after striking out, if need be, the rest of the particulars, under the powers vested in it under Order VI, rule 16, Civil Procedure Code.
On the other hand the learned Attorney General for the respondent No. 1 urges that in such a situation it was open to the Tribunal to consider whether, taking the petition as a whole and in its total effect, there was substantial compliance with the requirements of section 83.
He contends that if, in exercise of its judgment, it thought that there was substantial non compliance, notwithstanding that one out of the various items may have been specific, it was not bound to exercise its discretion in favour of the petitioners by ordering a striking out of the various items and to direct the trial of the petition to be confined to one single item which may be in order.
The learned Attorney General argues that this would be really making out for the petitioners a different petition from what they brought up before the Election Com mission and that in this class of cases the Tribunal had the right and the duty to exercise great strictness 446 in order that the machinery for setting aside elections might not be abused for the purpose of maligning the successful candidate by levelling vague and iriesponsible charges against him.
While there is considerable force in this argument, we think that in a case of this kind the Tribunal when dealing with the matter in the early stages should not have dismissed the application.
It should have exercised its powers and called for better particulars.
On non compliance therewith, it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.
We are, therefore, of the opinion that the order of the tribunal in dismissing the petition outright was clearly erroneous.
Notwithstanding this opinion we would, in the normal course, not have felt called upon to interfere in this case under article 136 after this lapse of time and at the instance of persons like the appellants before us who are mere voters having no direct personal interest in the result of the election.
But there is one other circumstance in this case which we have noticed and which we feel we ought not to overlook, though in the course of the arguments the same was not brought to our notice.
Paragraphs 6(a), (b) and (c) of the application for setting aside the election sets out certain grounds of alleged disqualification of the returned candidate to stand for the election.
It is also stated therein that objections in this behalf were taken at the time of scrutiny of the nomination papers but that they were summarily overruled by the Returning Officer without any enquiry and that accordingly the objections to the disqualification have been raised in the application.
The objections are as follows: "6.
The material facts in support of the grounds are as follows: (a) The election of candidate for the Madhya Pradesh State Assembly in the single member Akola Constituency was announced to be held on 31 12 1951.
Nominations were to be filed on or before 15 11 1951, 447 and scrutiny of nomination was due on 17 11 1951.
At this time of scrutiny objection was taken to the nomination paper of respondent No. 1 on several grounds but the material grounds were that respondent No. 1 was disqualified for being chosen as and for being a Member of Madhya Pradesh State Assembly under Chapter III, section 7 (d) of the Representation of the People Act, 1951 (Act XLIII of 1951).
That the respondent No. 1 is disqualified to fill the seat under the Act., because he is the Managing Agent or Managing Director of Rajasthan Printing and Litho Works private limited company under the Indian Companies Act.
He has, as a share holder and director, interest, in contracts for supply of goods, viz. stationery, paper and printing materials, etc., to the State Government of Madhya Pradesh.
He has also interest in contracts for the execution of works or performance of services, such as printing, etc., under taken by the State Government of Madhya Pradesh.
The respondent No. 1 gets a share by way of commission on sales effected by the Limited Company.
He has, therefore, by himself interest in the contracts of the company with the State Government of Madhya Pradesh.
(b)The respondent No. 1 is a partner in the firm Berar 'General Agency.
The said firm has entered into a contract for the performance of cloth distribution on behalf of the State Government to retailers and holds a licence for the same.
The respondent No. 1, therefore, has interest by himself in the said contract for the performance of services undertaken by the Government.
(c)The respondent No. 1 is the proprietor of the monthly Journal "Prawaha" and a by weekly paper "Matru bhumi".
These publications print Government advertisements on contract basis.
The respondent No. 1 has, therefore, interest in the said contract for the performance of services undertaken by the State Government Madhya Pradesh.
The sales and other details of the "Matru bhumi" concern are noted in the private accounts of the respondent No. 1.
The 1st respondent in answer to these allegations states as follows: "It is denied that there was any improper acceptance of the nomination paper of respondent No. 1 and in particular it is denied that any of the allegations made in paragraph 6(a), (b) & (c) of the petition constitute in law a disqualifications of section 7 of the Representation of the People Act.
Without prejudice to this it is submitted that the respondent No. 1 was not suffering from any of these disqualifications in fact on the date of the submission of the nomination paper".
Having regard to the nature of the alleged disqualifi cation, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates, it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.
It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition.
However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry.
But before doing so and in view of the delay and other circumstances that have already happened, 449 we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged corrupt practices set out in Schedule A excepting the one covered by paragraph I of item 1, i.e., as follows: "That in the month of December, 1951, respondent No. I had been to the premises of Akola Shree Gurdwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book 'Granth Saheb ' on the 7th day of the death of daughter of one Sardar Suratsingh.
At this meeting respondent No. 1 canvassed for votes for himself and paid Rs. 201, apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election.
Respondent No. I was guilty of bribery within the meaning of that term in section 123 of the Representation of the People Act".
The case will, therefore, go back for enquiry and trial with reference only to (1) the allegations in paragraphs 6(a), (b) and (c) of the application for setting aside the election, and (2) the allegations in paragraph 1 of item 1, in Schedule A attached to the application as set out above.
The Election Commissioner will now reconstitute an appropriate Tribunal for the purpose.
The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule.
It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.

summary:
The appellants, two of the electors of the Akola Constituency of the Madhya Pradesh State Assembly, filed an Election Petition against Respondent No. 1, the successful candidate in the election held on December 13, 1951, and the three other respondents who having been validly nominated went to the polls but were defeated.
The Election Petition, under Section 80 of the Representation of the People Act of 1951, was admittedly time barred by one day.
The Election Commission condoned the delay under the proviso to Section 85 of the Act and constituted a Tribunal for the trial of the petition.
On pleadings of the parties, nine issues were framed by the Tribunal which are covered by the following questions: (1) Whether the election petition was presented by a properly authorised person.
(2) Whether there was sufficient cause for presentation of the petition one day out of time.
(3) Whether the petition was defective for non joinder of certain parties as respondents.
(4) Whether the petition was defective for want of proper verification.
(5) Whether,the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto.
The Tribunal found only the first of the above points in favour of the petitioners by a majority.
But in respect of the other four points, it held against the petitioners unanimously.
As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits.
It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.
When the delay in submitting an election petition is condoned 429 by the Election Commission in exercise of its power under the proviso to Section 85 of the Representation of the People Act (Act XLIII of 1951), it is not open to the Election Tribunal, under Section 90(4) of the Act, to reconsider the question of limitation.
Even if, according to the requirement of Section 82 of the Representation of the People Act, any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limin on that sole ground; but it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.
Section 83(1) of the Act provides that an election petition has to be verified in the manner provided for verification of pleadings under the Code of Civil Procedure.
Clauses (2) and (3) of rule 15 in Order VI of the Code lay down the procedure for verification of pleadings.
Apart from those cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of the absence of the date of verification.
In such a case the applicant should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.
The requirement of "full particulars" of corrupt practices in Section 83(2) of the Act, is one that has got to be complied with, with sufficient fullness and clarification, so as to enable the opposite party to meet the allegations against him fairly, and so as to prevent the enquiry from being turned into a rambling and roving inquisition.
The primary responsibility for furnishing full particulars of alleged currupt practices and for filing a petition in full compliance with Section 83 (2) of the Act is that of the petitioners.
If they fail to do so initially it is their duty and responsibility to remove the defects when opportunity is available.
Tribunals, however, should not take an all too narrow view of their function in dealing with the various alleged defects in the petition and dismiss it on the ground of want of particulars.
They should call for better particulars and if that order was not complied with strike out such of the charges as are vague.
The petitioners also alleged that the returned candidate was disqualified to stand because he had interest in contracts with the Government.
But the Tribunal ignored these allegations and without enquiring into their truth dismissed the petition on the ground that the allegations relating to the charge of corrupt practices were vague, Held that it was not in the interest of purity of elections that such allegations of disqualification should be ignored and that it was a matter which called for enquiry.
Case remitted for enquiry with reference to the allegations that the returned candidate was disqualified and the charge of corrupt practice, which was held to be not vague.
Dinabandhu vs Jadumoni ( ; and Jagan Nath vs Joswant ([1954] S.C.R. 892), followed, 430


judgement:
Civil Appeal No. 1363 of 1974.
Appeal by special leave from the judgment and order dated the 20th May, 1971 of the Patna High Court at Patna in C.W.J.C. No. 306 L. N. Sinha and Girish Chandra, for the appellants section N. Mishra, B. P. Singh and A K Srivastava, for the respondents.
9 L522SCI/76 366 The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave turns on the question whether the Coal Mines Provident Fund Commissioner is to hear an employer before making an order requiring the employer to pay damages under section 10F of the Coal Mines Provident Fund and Bonus Scheme Act, 1948 (hereinafter referred to as the Act).
The employer being the respondent to this appeal was directed by a letter dated 3/4 January, 1969 to pay provident fund contributions amounting to Rs. 5821.21 for the months of July to September, 1968 and damages at the rate of 25 per cent on the above dues amounting to Rs. 1455.5O.
The employer was required to pay damages under the provisions of section 10F of the Act.
The employer filed an objection explaining the circumstances under which there was delay in the payment of provident fund contributions.
The employer prayed that damages might not be imposed at the rate of 25 per cent for the delay in payment.
The employer paid the provident fund contributions.
The employer was informed that damages charged on the delayed payments of provident fund contribution could not be waived.
The employer thereafter filed an application in the High Court for an order that the demand notice be quashed.
The High Court acceded to the application of the employer.
The High Court gave two reasons.
First, that the computation of amount of damages should arise upon consideration of facts and circumstances and a mechanical computation of damages is not contemplated.
Second, the authorities should have given opportunity to the employer to .
represent the case.
The High Court did not accept the contention of the employer that section 10F of the Act suffered from the vice of excessive delegation.
The provision contained in section 10F of the Act are as fol lows: "Where an employer makes default in the payment of any contribution or bonus or any charges payable by him under any scheme framed under this act, or where any person who is required to transfer provident fund accumulations in accordance with the provisions of section 3D makes default in the transfer of such accumulations, the Central Government may recover from such employer or person, as the case may be, such damages, not exceeding twenty five per cent of the amount of arrears, as it may think fit to impose.
" The Central Government under sub section (1) of section 10 C of the Act is authorised to delegate any power exercisable by it under the Act, or any Scheme framed thereunder, to the Coal Mines Provident Fund Commissioner or any other officer.
The Central Government in exercise of the power conferred under section 10C(1) of the Act by notification dated 1st October, 367 1966 directed that powers exercisable by it under sections 10A and A 10F of the Act and specified in column (1) of the Table attached to the notification shall, subject to the conditions specified in the corresponding entry in column (2) of the Table attached, be exercisable by the Coal Mines Provident Fund Commissioner appointed under section 3C(l) of the Act.
There is a Schedule attached to the notification where sliding scale of damages has been fixed by the Central Government under section 10F of the Act.
The Schedule attached to the notification is as follows: "Sliding rate of recovery of damages under section 10F of the Coal Mines Provident Fund and Bonus Scheme Act, 1949.
" C S.No. of Period of defaultault , duting one over over over over over the year.
month one two three four five or less month months months months months up to up to up to up to two three fourfive months months months months 2 3 4 5 6 7 Ist default 2% of S% of 18% of 15% of 20% of 25% of arrears alTears alTears arrears arTears arrears 2nddefault S% " IO% " 15% " 20% " 25% " 2S% " 3rd default IO% " IS% " 20% " 2S% " 2S% " 2S% " 4thdefault IS% " 20% " 2S% " 2S% " 2S% " 2S% 5th default 20% " 2S% " 2S% " 2S% " 2S% " 2S% " 6th or subsequent 2S% " 2S% " 2S% " 2S% " 2S% " 2S% " default li Under section 78 of the Act the Coal Mines Provident Fund Commissioner or any other officer authorised in that behalf by the Central Government may, by order, determine the amount due from any employer under any provision of this Act or any scheme framed thereunder and for this purpose may conduct such enquiry as he may deem necessary.
Section 78(3) also contemplates giving of reason able opportunity to represent the case.
The High Court held that the provisions of section 78 are attracted in the case of an order relating to determination of damages for delay in payment of contribution under the Act.
The Solicitor General contended that section 78 of the Act does not apply for two reasons.
First, section 78 of the Act would be applicable only where liability is to be determined.
Neither liability to pay nor default in payment is disputed in the present case.
Second, under section 10F of the Act the amount of damages is quantified and a 368 personal hearing is not necessary because the employer has said everything in his representation and an order for payment of damages is not one of punishment.
The provisions contained in section 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and, second, for this purpose he may conduct such enquiry as he may deem necessary.
Therefore, an enquiry is contemplated.
Section 78(3) speaks of reasonable opportunity being given to an employer to represent his case.
The provisions in section 10F of the Act also indicate that determination of damages is not a mechanical process.
The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of the amount of arrears as it may think fit to impose".
Here the two important features are these.
First, the words of importance are "damages not exceeding 25 per cent".
These words show that the determination of damages is not an inflexible application of a rigid formula.
Second, the words "as it may think fit to impose" in section 10F of the Act show that the authorities are required to apply their mind to the facts and circumstances of the case.
This Court in The India Sugars and Refineries Ltd. vs Amravathi Service Co op.
Society Ltd. & Anr. etc.(l) said that "situations in which a duty will arise to act judicially according to the natural justice cannot be exhaustively enumerated.
A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that addition price would be paid.
The facts which point to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanctions, if any involved".
When a body or authority has to determine a matter involving rights judicially the principle of natural justice is implied if the decision of that body or authority affects individual rights or interests.
Again, in such cases having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard.
(See State of Punjab vs K. R. Erry & Sobhag Rai Mehta.(2) The High Court was correct in holding that an opportunity should have been given to the employer to be heard before the damages were determined.
The appeal is, therefore, dismissed with costs.
section R.Appeal dismissed.

dataset_name: IN-Abs

summary:
Section IOF of the Coal Mines Provident Fund and Bonus Scheme Act 1948 is a penal section under which for default in the payment of any Provident Fund contribution, the Central Government may recover from such employer or person as the case may be, such damages, not exceeding 25% of the amount of arrears, as it may think fit to impose.
ln respect of tho period from July to September, 1968, the respondent employer was asked to pay a sum of Rs. 1455.50 as damages being 25% of the arrears of Provident Fund contributions by the appellant to which he filed an objection explaining the delay.
The employer ' request for waiving the damages was negatived.
The writ application of the employer against that order was allowed by the High Court on two grounds, viz. (i) that the computation of damages should arise upon consideration of the facts and circumstances, and (ii) the authorities should have given an opportunity to the employer to represent the case.
Dismissing the appeal by special leave, the Court. ^ HELD: ( I ) The provisions contained in a 78 of the Act indicate first that the Coal Mines Provident Fund Commissioner may determine the amount due from the employer, and second, for this purpose he may conduct such enquiry as he may deem necessary.
Therefore, an enquiry is contemplated.
Section 78 (3 ) speaks of reasonable opportunity being given to an employer to represent his case.
The provision in section 10F of the Act also indicates that determination of damage is not a mechanical process.
The words of importance in section 10F of the Act are "such damages not exceeding 25 per cent of tho amount of arrears as it may think fit to impose".
Here the two important features are these: First the words of importance are "damages not exceeding 25% show that the determination of damages is not an inflexible application of the rigid formula.
Second, the words "as it may think fit to impose" in section 10F show that the authorities are required to apply their mind to the facts and circumstances of the case.
[368A C] (2) When a body or authority has to determine a matter involving rights judicially, the principle of natural justice is implied if the decision of that body or authority affects individual rights or interest.
[368E E] Indian Sugars & Manufacturers Ltd vs Amravati Services Co operative Society Ltd. Anr.
r[1976] 2 S.C.R. 740 and State of Punjab vs K R. Erry k Sobhag Rai Mefta ; , applied.


judgement:
Civil Appeal No. 1237 of 1968.
From the Judgment and Order dated the 24th August, 1967 of the High Court of Judicature at Bombay in Second Appeal No. 798 of 1967.
Lal Narain Sinha, Solicitor General for India, section N. Prasad, and Girish Chander, (Not present), for the appellant.
M. N. Phadke, P. C. Bhartari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, (Not Present), for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is a defendant 's appeal by special leave against the judgment and decree of the High Court of Bombay dismissing its second appeal in limine by its order dated August 24, 1967.
The appeal raises important and interesting questions of law relating to the interpretation of some of the provisions of the Indian Railways Act pertaining to the liability of the Railways for breach of contract.
The plaintiff/respondent brought a suit for recovery of an amount of Rs. 2,378.65 nP being the damages for breach of contract resulting from delayed delivery of the goods consigned by the plaintiff through the defendant Railways to be delivered at Poona.
The plaintiff which is a firm carrying on its business dealing in iron goods booked a consignment with the defendant on December 15 1961 at Bhillai to be carried to Poona and to be delivered therein to the consignee safely and in good condition.
The defendant Railways accepted the offer under a Railway Receipt dated December 15, 1961.
It appears that there was some delay in the delivery of the goods at Poona and on enquiries made by the plaintiff it appeared that till May 9, 1962 the goods had not been delivered at all.
Thereafter the plaintiff served a noted claim and of suit dated May 9, 1962 on the Railway Administration.
Soon after the service of the notice the consignment was delivered on July 21, 1962.
According to the plaintiff under the contract or the usage of the Railways the normal period of delivery was ten days and as defendant had committed an inordinate delay in delivering the goods it was liable to pay damages to the plaintiff.
The plaintiff, however, calculated the damages by way of interest at the rate of 12% per annum on the locked up capital of Rs. 27,332 44 which due to rise in prices has swelled to Rs. 35,476 27 nP.
The plaintiff further alleged that the delay in the delivery was due to gross negligence of the defendant Railways which instead of sending the goods direct from Bhillai to Poona 507 diverted them to Aurangabad where the consignment had to be loaded in a meter gauge train and then to a broad gauge line and it was only after the defendant received the notice from the plaintiff that it expedited the delivery of the goods.
The defendant Railways contested the suit on the ground that there was no inordinate delay, nor there was any contract that the goods were to be delivered within ten days.
It is also averred that the plaintiff had led no evidence to show that there was any loss of profits or rise in the market price.
The defendant further alleged that the plaintiff was not entitled to claim interest as damages.
The Trial Court accepted the plaintiff 's case in toto and found (1) that there was an inordinate delay in the delivery of the goods belonging to the plaintiff at Poona; (2) that the goods were first diverted to Aurangabad, although the route from Bhillai to Poona lay via Nagpur and Aurangabad does not fall on the route at all; and (3) that the defendant was guilty of gross negligence and was, therefore, responsible for loss for delay or deviation in carrying the goods.
The Trial Court, however, found that the figure of Rs. 27,332 44 the original amount which was deposited by the plaintiff in the Bank against the goods should be taken as the basis for calculation of damages and after calculating interest at the rate of 6% per annum the plaintiff was awarded a sum of Rs. 1250/ including the notice charges and passed a decree for this amount in favour of the plaintiff.
The defendant then filed an appeal before the District Judge Poona who upheld the finding of the learned Munsiff and dismissed the appeal.
A second appeal taken by the defendant to the High Court of Bombay was also dismissed in limine, and hence this appeal by special leave.
Normally it would appear that the appeal was concluded by findings of fact but we find that on the proved facts some clear questions of law arise for decision and therefore this was not a case in which the High Court should have dismissed the appeal in limine.
In support of the appeal the learned Solicitor General submitted three points before us: (1)that as the cause of action of the plaintiff is based on the delayed delivery which arose at the most on January 1, 1962, the case of the plaintiff is covered by the provisions of the new Railways Act as amended by Act 39 of 1961, which is an exhaustive Code in itself providing a self contained machinery in order to determine the liability of the Railways and as the conditions mentioned in section 76 of the Railways Act have not been fulfilled the plaintiff is not entitled to any decree; (2)that at any rate since the plaintiff has claimed interest as damages, in the absence of any agreement providing for such an interest, the plaintiff 's claim is not actionable at law; and 508 (3) that the plaintiff could not claim for loss of profit or loss of market as the same is expressly barred by section 78(d) of the new Railways Act.
As an alternative argument it was also pleaded that the plaintiff has not averred in his plaint that there was any rise in the prices because the goods belonging to the plaintiff were a controlled commodity and could not be sold without a permit, Before claiming loss of profits it was the bounden duty of the plaintiff to allege that he had been granted the permit to sell the goods.
Mr. Phadke appearing for the respondent has repelled the contentions of the appellant on the ground that the new Railways Act does not reduce or diminish the liability of the railway administration for breach of contract but in fact the Act seeks to increase the liability.
Secondly it was submitted that even if the case of the plaintiff does not fall within the four corners of section 76 of the new Railways Act, the common law right of the plaintiff to claim damages against the appellant has not been barred by the Act.
Lastly it was submitted that the plaintiff has not claimed interest on any specified amount of money but has merely calculated the same as a measure of damages which it suffered due to the breach of contract and gross negligence on the part of the Railways which has been found by the Courts below.
Finally it was contended that as the contract was entered into between the parties on December 15, 1961, when the goods were booked at Bhillai, the liability for damages arose on that day and the case of the plaintiff would be covered by the provisions of the Railways Act before it was amended by Act 39 of 1961.
In order to answer the contentions raised by the parties it may be necessary for us to trace briefly the history of the circumstances in which the Railways Act of 1890 was amended by Act 39 of 1961.
We would, for short, refer to the Railways Act of 1890 as the "old Act" and the Act as amended by Act 39 of 1961 as the "new Act".
It would appear that under section 72 of the old Act the responsibility of railway administration as a carrier of animals and goods was clearly that of a bailee under sections 151, 152 and 161 of the Indian Contract Act.
In other words, the railway administration was impressed with the duty to carry the goods with the same care and caution which a prudent owner would apply in the case of his own goods If there was any violation or breach of the said care and caution expected of the Railway it would have been liable to damages.
Section 72(1) of the old Act ran thus: "(1) The responsibility of a railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under sections 151.
152 and 161 of the (9 of 1872).
" It may be pertinent to note that sub section (3) of section 72 of the old Act expressly excluded the principles of the common law of England or in the Carriers Act of 1865 regarding the responsibility of common carriers.
After our country became free and the Railways entered the commercial field as one of the important wings of the Government, there 509 appears to be a public demand for making the Railway administration as a public body to take upon itself more onerous responsibilities where the rights of the free citizens were involved.
Under the British Government most of the Railways were owned by private companies whose ownership was to be extinguished after lapse of a particular period.
Soon after the freedom all the Railways were taken over by the Central Government and run by it.
In view of the new problems facing the Government and the public demand for a change in the law, the Government appears to have decided to convert the responsibility of the railway from that of a carrier to that of an insurer.
But before doing this, the Government appointed a Committee called the Railway Freight Structure Enquiry Committee (1956 57) which recommended that the responsibility of the Railways in India should be changed to that of a common carrier instead of a bailee.
The Committee which had been asked to examine the statutory provisions dealing with the responsibility of railways as common carriers was of the opinion that the public would derive much satisfaction from a radical change from bailee 's responsibility to that of a common carrier, and that this change was bound to tone up the administrative machinery of the railways in respect of effective prevention of transit losses.
In view of the recommendations of the said Committee the Government introduced a bill in the Lok Sabha for amending some of the provisions of the Railway Act in order to implement those recommendations.
From a perusal of the debates of the Lok Sabha when this Bill was introduced it would appear that the Deputy Minister of Railways explaining the objectives of the Bill observed as follows: "Taking into account all aspects of the problem, it is proposed that railways should assume the responsibility of a common carrier instead of that of a bailee.
As bailees, the railways are required to take as much care of the goods entrusted to them for carriage as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value.
However, closely following the legal position in the United Kingdom, it is proposed that the basic responsibility of our railways for loss, destruction or deterioration etc.
of animals or goods be as set out in the proposed section 73.
When the railways assume this responsibility, broadly speaking, they will be liable for loss of or injury to goods while in transit by rail, arising from any cause whatsoever, unless such loss or injury is proved by the railways to have been caused by an act of God, or by an act of war, or by an act of public enemies or is proved to be consequence of inherent vice in the thing carried or is attributable to the consignor 's own fault.
Even where the loss is proved by the railways to have been caused by the excepted perils, just referred to by me, the railways will not be absolved of their responsibility unless they further prove that they had used reasonable forethought and care in the carriage of animals or goods.
510 The result of the changes proposed will be that the railways will be paying claims for compensation in many cases where they are not paid at present, for example, in cases of losses due to running train thefts, damage by wet in transit in spite of bailee 's care having been taken etc.
" This was the clear background against which the new Act was passed.
Even the statement of objects and reasons, the relevant parts of which may be extracted as under, shows the main object of the new Act: "The Railway Freight Structure Enquiry Committee (1956 57) has recommended that the responsibility of the railways in India as carriers of animals and goods, which is at present that of a bailee, should be changed to that of a common carrier.
There is also a public demand for such a change.
After a careful and detailed examination of the question, the Government have decided to accept the Committee 's recommendation.
x x x x x (a) The Bill seeks to make it clear that in the case of through booking of consignments over an Indian Railway and a Foreign Railway, the responsibility of the Indian Railway as a common carrier would extend only over that portion of the carriage which is over the Indian Railway; x x x x x (c) Other amendments included in the Bill are intended to rectify certain defects or ambiguities in the existing provisions of the Act which were revealed by experience in its working.
" It appears that the old section 72 was completely deleted including sub section
(3) which expressly prohibited the principles of the common law of England for determining the liability of the Railways as common carriers.
Instead the new section 72 laid down the form in which a contract was to be executed between a consignor and the Railway and a risk note was provided for by clause (b).
It may be necessary to note an argument put forward by the learned Solicitor General on this point.
It was submitted that by virtue of the provisions of sections 72 and 73 of the new Act the statute superseded any contract entered into between the parties and the liability of the Railways was governed purely under the provisions of the Railways Act and not under the terms of contract which may have been entered into between the consignor and the Railway.
We are, however, unable to accept this argument.
It is well settled that while the merely provides certain elementary conditions under which the contract becomes binding on the parties, it does not provide any particular form or condition of a contract.
It is, therefore, clear that the parties to the contract may agree to a particular form or condition or of mode in which the contract is to be executed.
In case where the Government enters into a contract with a person or vice versa a particular form in which the contract is to be executed has been provided for even by the Constitution and the contract has to be in that form.
511 This does not mean that the provisions of the Contract Act stand superseded either by the Constitution or by the Railways Act which provide for a particular mode or a form in which the contract has to be entered into.
Section 72 therefore does nothing more or nothing less than provide for a particular form in which the contract is to be executed and it enjoins that such a form will be prescribed by the railway administration and approved by the Central Government.
The provisions of section 72 of the new Act run thus: "72.
Any person delivering to a railway administration any animals or goods to be carried by railway shall (a) if the animals or goods are to be carried by a train in tended solely for the carriage of goods, or (b) if the goods are to be carried by any other train and consist of articles of any of the following categories, namely: (i) articles carried at owner 's risk rates.
(ii) articles of a perishable nature.
(iii) articles mentioned in the Second Schedule.
(iv) articles in a defective condition or defectively packed.
(v) explosives and other dangerous goods.
execute a note (in this Act referred to as the forwarding note) in such form as may be prescribed by the railway administration and approved by the Central Government, in which the sender or his agent shall give such particulars in respect of the animals or goods so delivered as may be required".
It is not possible from the provisions of section 72 to spell out the principle that the new Act completely supersedes the provisions of the Contract Act both in respect of the conditions and the liability.
Section 73 of the new Act lays down that the railway administration shall be responsible for the loss, destruction, damage, deterioration or non delivery except in certain cases which amount to vis major.
But there also the proviso confers responsibility on the Railways for loss etc.
, if the railway administration does not prove that it has used reasonable foresight and care in the carriage of the goods.
The Solicitor General contended that section 76 of the new Act is the provision which deals with delay in the delivery and the plaintiff can succeed only if his case falls within the four corners of the section.
Before answering this question, it may be necessary to dispose of a point on which the counsel for the parties have joined issue.
According to the Solicitor General the liability of the Railway would be governed by the new Act inasmuch as the cause of action has arisen after coming into force of the new Act.
Counsel for the respondent, however, submits that the matter will be governed by 512 the old Act because the liability of the Railway arose when the goods were booked in December 1961.
In our opinion, there is a very short answer to this question.
The plaintiff has clearly and categorically pleaded in paragraph 2 of the plaint that the cause of action arose at Poona when the complete consignment was delivered to the plaintiff on July 21, 1962 i.e. after the new Act had already come into force.
Further more, it is also alleged that the reasonable and normal transit period expired on January 1, 1962.
In these circumstances, therefore, according to the plaintiff itself, the breach occurred only after the new Act had come into force whether it was January 1, 1962 or thereafter.
There can be no question of the liability arising when the goods were booked and the contract was entered into between the plaintiff and the Railway, because there is no presumption that the contract would result in breach.
The plaintiff would be entitled to damages only when there was a breach of contract and if the said breach, even according to the plaintiff itself, occurred on January 1, 1962 or thereafter, then it is manifest that the case would be covered by the new Act and not by the old Act.
The first contention put forward by the Solicitor General was that the case of the plaintiff does not fall under any of the contingencies contemplated by section 76 of the new Act.
Section 76 runs thus: "76.
A railway administration shall be responsible for loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants.
" It is submitted that although there was delay in the delivery of the goods on the part of the railway administration, but the railway administration would be responsible only if the plaintiff further proves that there has been loss, destruction, damage or deterioration of the goods by virtue of the delay.
It is true that the plaintiff has not alleged that there was any physical loss, destruction, damage or deterioration of the goods, but that, in our opinion, does not put the plaintiff out of court.
Section 76 appears to have a very limited scope: it contemplates clearly those cases which fall within the contingencies contemplated by section 76.
These contingencies refer to certain physical factors, viz., actual and physical loss, destruction, damage or deterioration of goods.
For instance, where the goods worth Rs. 10,000/ due to delayed delivery have sustained deterioration as a result of which their value has gone down to Rs. 5,000/ then once this fact is proved the railway administration shall be liable for such a loss or the value of such deterioration.
We are of the opinion that section 73 of the new Act, while converting the liability of the railway administration from that of a carrier to that of an insurer, has imposed heavier responsibility on the railway administration.
The history and the object with which the radical provisions of the new Act were introduced bear testimony to change of the nature 513 of the liability of the railway administration.
But in order to avoid the payment of double damages, sections 76 and 78 have been inserted.
In other words, where due to delay on the part of the Railway there is physical deterioration or diminishing of the value of the goods, the plaintiff cannot claim damages by way of loss of profits or loss of market plus damages sustained by the actual loss or deterioration of the goods.
In such a case the plaintiff can claim only the actual loss in the value of the goods caused by destruction, damage or deterioration and not loss of profit.
Section 78(d) which flows out of section 76 clearly provides that the railway administration shall not be responsible for any indirect or consequential damages or for loss of particular market.
The Solicitor General, therefore, rightly contended that in cases falling squarely within the four corners of section 76 of the new Act, section 78(d) will apply.
In fact section 78(d) merely incorporates the measure of damages as contemplated by section 73 itself.
It is well settled that the liability of an ordinary carrier even in the English common law does not extend to a damage which is indirect or remote.
Loss of profit or loss of a particular market has been held by a number of decisions to be a remote damage and can be awarded only if it is proved that the party which is guilty of committing the breach was aware or had knowledge that such a loss would be caused.
Section 78(d), however, seeks to bar the remedy of this kind of damage.
In the instant case, however, as the plaintiff itself has not claimed loss of market or remote damages, the question of application of section 78(d) does not arise.
Moreover, in the instant case, it is conceded that there was no physical deterioration of the goods at all which were delivered to the consignee at Poona in the same condition as they were booked from Bhillai by the plaintiff.
In these circumstances, the case of the plaintiff does not fall within the four corners of section 76, nor does it fulfil any of the categories mentioned therein.
If section 76 does not apply to the facts of the present case, then section 78 will also have no application, because section 78 starts with a non obstante clause "Notwithstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible".
We, therefore, agree with the learned counsel for the respondent that under the new Act the liability of the Railway has been increased so as to take upon itself the responsibility of a common carrier.
Counsel for the respondent submitted that even if section 76 barred the remedy of the plaintiff, the fact that due to delay in delivery there was loss of profit or loss of market would amount to "deterioration as contemplated by section 76 of the new Act.
In support of this contention, the learned counsel relied on a decision of the Allahabad High Court in G.I.P. Railway Co. & others vs Jugul Kishore Mukat Lal where Sulaiman, Ag.
C.J., as he then was, observed as follows: "It is clear to us that the meaning of the word "deterioration" in section 161 which imposes the liability on the railway company must be the same as in risk note form B which lays 514 down the special conditions under which the railway company is protected.
In both these "deterioration" resulting from a delay in tendering the good is contemplated.
x x x We therefore accept the view expressed by Mukerji, J., in the unreported case and hold that the word "deterioration" is wide enough to include depreciation in value on account of a fall in the price of the goods.
" The same view appears to have been taken by the Orissa High Court in Union of India and others vs Messrs. Sheobux Satyanarayan where Misra, J., as he then was, observed as follows: "Though there was some difference of opinion as to the import of the word "deterioration" used in section 72 of the Indian Railways Act and in section 161 of the , the position is now well settled that it is wide enough to include depreciation in value on account of a fall in the price of the goods." As against this a Division Bench of the Lahore High Court in R. I. Railway Co. Ltd. vs Diana Mal Gulab Singh observed as follows: "The 'deterioration ' of a thing, whether it be in quality or in value, implies in ordinary parlance a change for the worse in the thing itself.
If a thing is worth less than it was before only because the market rate has gone down it would be correct to say that it has depreciated in value, but not that it has deteriorated.
" Having regard to the background and the setting in which the word "deterioration" occurs in section 76 of the new Act it seems to us that the parliament intended that the word should be used in the ordinary parlance and in a restricted sense so as to include within its ambit the actual physical act of deterioration, i.e. the physical part of it, namely, the change for the worse in the thing itself as very aptly put by Martineau, J., in the Lahore High Court judgment referred to above.
We must seek to draw a clear distinction between a physical deterioration of a thing and depreciation in its value according to market price.
These are two separate concepts having separate ingredients.
The words used in section 76 of the new Act, namely, "loss, destruction, damage or deterioration" must be read as ejusdem generis so as to indicate the actual and physical loss or change in the goods contemplated by section 76.
In these circumstances, therefore, with due respect, we are unable to agree with the somewhat broad view taken by the Allahabad High Court and followed by the Orissa High Court in the cases referred to above.
We, on the other hand, prefer to adopt the view taken by the Lahore High Court in the case referred to above.
In this view of the matter, it is clear that the word "deterioration" used in section 76 referred to the physical and actual deterioration of the goods which has admittedly not taken place in the present case.
The plaintiff cannot take advantage of section 76 relying on the 515 word "deterioration" because of the finding of negligence entered by the Courts below.
The case of the plaintiff is clearly taken out of the ambit of sections 76 and 78 and his suit for damage also cannot be defeated on the ground that it is barred by section 76 or section 78 of the new Act.
We are, therefore, of the opinion that in view of the finding of fact arrived by the Courts below the plaintiff is undoubtedly entitled to damages This brings us to the second contention raised by the Solicitor General, namely, that the plaintiff is not entitled to interest as damages for breach of the contract.
It was submitted that what the plaintiff has done is to calculate interest at the rate of 12% which has been reduced to 6% per annum on the amount deposited by him in the Bank which remained locked up for more than six months and to claim the same as damages.
It was contended that the plaintiff plainly could not do so in view of the Interest Act under which interest can only be charged before suit if so stipulated by the parties to the contract.
It is common ground that in the present case the contract between the parties does not provide for charging any interest for breach of contract.
The Solicitor General relied on a decision of this Court in Union of India vs Watkins Mayore & Company where this Court observed as follows: "Under the Interest Act, 1839, the Court may allow interest of the plaintiff if the amount claimed is a sum certain which is payable at a certain time by virtue of a written instrument.
But it is conceded that the amount claimed in this case is not a sum certain but compensation for unliquidated amount.
On behalf of the respondent it was submitted by Mr. Aggarwala that interest may be awarded under the Interest Act which contains a provision that "interest shall be payable in all cases in which it is now payable by law".
But this provision only applies to cases in which the Court of Equity exercises jurisdiction to allow interest.
In the above case the plaintiff had brought a suit for damages claiming a particular quantified amount of Rs. 1,07,700/ as compensation for storage of over 600 tons of iron sheets for a particular period.
This quantified amount included a sum of Rs. 2,974/2/ as interest on the various sums claimed by the plaintiff as compensation, namely, godown rent, chowkidar 's salary, cartage from Railway station to godown etc.
The High Court, however, granted a decree only for Rs. 27,525/5/ including the amount of interest claimed by the plaintiff.
Thus this Court in that case was dealing with interest claimed by the plaintiff not as a yardstick for assessing damages but as pure and simple interest on the quantified amount of compensation or damages claimed by the plaintiff.
This Court held that the interest to the extent of Rs. 2,974/2/ as claimed by the plaintiff could not be allowed in the absence of there being any contract justifying the charging of such interest.
This Court was not at all concerned with a case like the present one where the plaintiff has merely claimed damages pure and simple and in order to assess the same had applied the 516 yardstick of charging interest at a particular rate on the locked up capital for a period of more than six months.
In these circumstances, therefore the ratio of the aforesaid decision in Watkins Mayore & Company (supra) is not applicable to the facts of the present case.
Similarly in Bengal Nagpur Railway Co. Ltd. vs Ruttanji Ramji which was relied upon by this Court in Watkins Mayore & Company (supra) the amount claimed by the plaintiff was a specified amount on the basis of which interest was charged which had the effect of increasing the damages sought for.
That was a case of a contractor who had brought a suit for recovery of the amount due from the Government Department and had added interest to the total claim made by the plaintiff.
The Privy Council pointed out that as there was no stipulation which authorized the plaintiff to charge interest on the quantified amount of damages, the plaintiff was not entitled to any interest.
Thus, in other words, the ratio of the decision in Ruttanji Ramji 's case as also in Watkins Mayore & Company (supra) would apply only to such cases where interest by way of damages is claimed for wrongful detention of a debt or where the interest is claimed on a specified amount due or claimed against any debtor.
The principle adumbrated in the two cases mentioned above will not apply to cases where the plaintiff does not claim interest on a quantified amount or on damages but where the plaintiff merely calculates interest as a yardstick or measure to assess the damages which he would be entitled to.
In the instant case the Courts below have clearly found that the plaintiff had deposited a sum of Rs. 27,332 44 in the Bank soon after booking the consignment with the railway administration.
The plaintiff was a stockist and as the money in the Bank remained idle for a period of more than six months due to the delayed delivery made by the Railway on account of its negligence, the plaintiff merely claimed compensation for this delayed delivery on the basis that if the amount was not locked up it would have earned some interest which would yield some profit to the plaintiff.
Thus it is clear, therefore, that in the instant case the plaintiff neither claimed interest on any quantified amount, nor did he claim profit due to loss of market.
In Digbijai Nath vs Tirbeni Nath Tewari a Division Bench of the Allahabad High Court, while interpreting the decision of the Privy Council referred to above, observed as follows: "We do not consider that this case is authority for the proposition that interest cannot be claimed by way of damages for breach of a contract under section 73, Contract Act.
All that was held in it was that interest cannot be allowed by way of damages for wrongful detention of debt.
* * * The position is different where interest is claimed as part of the damages for breach of a contract.
A similar view was taken by a Division Bench decision of the Patna High Court in The Official Receiver, Calcutta High Court and another 517 vs Baneshwar Prasad Singh and another.
We find ourselves in complete agreement with the principles laid down in those cases.
For these reasons, therefore, we are of the opinion that the decision of this Court in Watkins Mayore & Company (supra) does not appear to be of any assistance to the appellant, so far as the facts of the present case are concerned.
Thus it is clear that there is no question of section 73 of the Contract Act overriding the provisions of the Interest Act, because in the instant case the Interest Act has no application at all inasmuch as no interest is claimed by the plaintiff at all but interest has been used as a measure to determine the compensation which the plaintiff could seek against the appellant for its negligence in causing inordinate delay in the delivery of the goods.
The contention raised by the learned Solicitor General on this point is, therefore, overruled.
The plaintiff is not claiming the sum decreed by way of interest but he is claiming the damages calculated on a particular basis.
As a common carrier the Railway is undoubtedly responsible for breach of contract.
In the instant case the Railway Receipt shows that the goods were booked to be carried from Bhillai to Poona which is on the Nagpur route.
There was absolutely no reason nor any occasion for the Railway to divert the goods to a different route and for taking the same to a different route and for taking the same to Aurangabad which did not fall on the route to Poona at all.
The Courts below, therefore, rightly found that the Railway was guilty of gross negligence.
The last question submitted by the learned Solicitor General was that the plaintiff was not entitled to loss of profit or loss of market, because the plaintiff has not pleaded anywhere that he had obtained any permit for the goods which, were a controlled commodity and sustained loss of market.
It is true that the plaintiff has not pleaded this fact, but the plaintiff has not at all prayed for any damages on the ground of loss of market or loss of profit.
The plaintiff has only claimed nominal damages for the loss which occurred to him because of the amount of money which he had deposited in the Bank and was locked for more than six months due to the delayed delivery.
The Trial Court has already scaled down the amount from Rs. 2,378 65 to Rs. 1,250/ and we think the Trial Court was fully entitled to do so.
In these circumstances, therefore, all the contentions raised by the Solicitor General fail and we find no merit in this appeal which is accordingly dismissed with costs.
P.B.R. Appeal dismissed.

summary:
A consignment of iron goods was booked by the respondent by rail on December 15, 1961.
The due date of delivery under the contract or usage of the railways was December 25, 1961.
As the goods were diverted, they were actually delivered on July 21, 1962.
The respondent filed a suit for damages alleging negligence on the part of the railway in that, by reason of diverting the consignment, there was inordinate delay in its delivery which resulted in loss to it by way of interest on capital.
The trial court decreed the suit but in the matter of damages by way of loss of interest it gave 6% per annum instead of 12% claimed by the respondent.
The District Court dismissed the appellant 's appeal, and the High Court dismissed the second appeal in limine.
On appeal to this Court it was contended for the appellant that (i) since the cause of action was based on delayed delivery, the case was covered by the Railway Act, as amended in 1961, that the applicable section is section 76 and that since the conditions mentioned therein had not been fulfilled, the respondent was not entitled to a decree; (ii) that the respondent could claim for loss of profit or loss of market as the same was expressly barred by section 78(d) of the new Act; and (iii) that the respondent 's claim for damages was not actionable in the absence of any agreement providing interest on capital as a measure of damages.
It was contended for the respondent that even if section 76 barred the remedy, loss of profit or market resulting from delayed delivery would amount to "deterioration" contemplated by section 76.
Dismissing the appeal to this Court, ^ HELD: In view of the finding of fact arrived at by the courts below, the respondent is entitled to damages.
[515B] 1.
(a) The case is covered by the new Act and not by the old Act as contended by the respondent.
There could be no question of liability arising when the goods were booked and the contract was entered into between the respondent and the railways, because, there was no presumption that the contract would result in breach.
[512B C] In the instant case, the cause of action arose when the consignment was delivered to the respondent on July 21, 1962, that is, after the new Act came into force.
The reasonable transit period having expired on January 1.
1962 the breach occurred after the new Act came into force.
(b) Section 76 of the Act has a very limited scope: it contemplates clearly those cases which fall within the contingencies contemplated by it.
These contingencies refer to certain physical factors, viz: actual and physical loss destruction, damage or deterioration of goods.
Where due to delay on the part of the railway there is physical deterioration or diminishing of the value of the goods, the plaintiff cannot claim damages by way of loss of profits or loss of market plus damages sustained by the actual loss or deterioration of the goods.
In such a case the plaintiff can claim only the actual loss in the value of the goods caused by destruction, damage or deterioration and not loss of profit.
[512F H] (c) The word "deterioration" is used in its ordinary parlance, so as to include within its ambit the actual physical act of deterioration, namely, the change for the worse in the thing itself.
[514E F] 505 B.I. Railway Co. Ltd. vs Piana Mal Gulab Singh A.I.R. , approved.
G.I.P. Railway Co. & others vs Jugal Kishore Mukat Lal A.I.R. 1930 All. 132 and Union of India and others vs Messrs. Sheobux Satyanarayan, A.I.R. 1963 Orissa 68, not approved.
(d)The words "loss, destruction, damage or deterioration" occurring in section 76 must be read ejuedem generis to indicate the actual and physical loss or change in the goods contemplated by that section.
In the instant case, since there was no physical deterioration of the goods at all which were delivered in the same condition in which they were booked, the case of the respondent does not fall within the four corners of the section.
Nor can the respondent take advantage of section 76 relying on the word "deterioration" because of the finding of negligence entered by the courts below.
[514G] If section 76 does not apply then section 78 would have no application because that section starts with a non obstante clause.
[513E F] (2) Section 78(d), which flows out of section 76, provides that the railway administration shall not be responsible for any indirect or consequential damages or for loss of particular market.
It merely incorporates the measure of damages as contemplated by section 73.
[513B] In the instant case as the respondent had not claimed loss of market or remote damages the question of application of section 78(d) did not arise.
3(a) The case of the respondent is clearly taken out of the ambit of sections 76 and 78.
Hence its suit for damages could not be defeated on the ground that it was barred by section 76 or section 78 of the Act.
[515A B] (b) It is difficult to accept the contention of the appellant that, by virtue of sections 72 and 73, any contract entered into between the parties and the liability of the railway was governed purely by the provisions of the Railway Act and not by the terms of the contract between the parties.
[510G] The Indian Contract Act provides certain elementary conditions for a binding contract but does not provide any particular form of contract.
The fact that where the Government is a party to a contract, the particular form in which the contract is to be executed has been provided for by the Constitution, did not mean that the provisions of the Contract Act stand superseded by the Constitution or in this case by the Railway Act.
Section 72 does nothing more than provide for a particular form in which the contract is to be executed and it enjoins that such a form will be prescribed by the railway administration and approved by the Central Government.
[510H 511 A] (c) Section 73 lays down that the Railway administration shall be responsible for the loss, destruction, damage, deterioration or non delivery except in certain cases which amount to vis major in which case also the Act places responsibility on the railways if it did not prove that it had used reasonable foresight and care in the carriage of goods.
The section, while converting the liability of the railway administration from that of a carrier to that of an insurer, has imposed heavier responsibility on the railway administration.
[511F G] 4(a) There is no question of section 73 of the Contract Act over riding the provisions of the Interest Act because in the instant case the Interest Act has no application at all inasmuch as no interest is claimed by the plaintiff; but interest has been used as a measure to determine the compensation which the respondent could seek against the appellant for its negligence in causing inordinate delay in the delivery of the goods.
The respondent had only claimed nominal damages for the loss because of the amount of money locked up for more than six months due to late delivery.
[517B] (b) The courts below rightly found that the railway was guilty of gross negligence.
As a common carrier the railway is responsible for breach of contract.
There was absolutely no reason for the railway to divert the consignment to a place which did not fall on the route at all.
[517D] 506 (c) The trial court was fully entitled to scale down the amount of interest from 12% to 6%.
[517F] Union of India vs Watkins Mayore & Company A.I.R. 1966 S.C. 275 distinguished.
Digbijai Nath vs Tirbeni Nath Tewari A.I.R. 1946 All. 12 and The Official Receiver, Calcutta High Court & Anr.
vs Baneshwar Prasad Singh & Anr.
A.I.R. 1962 Pat.
155 approved.
The present appeal was concluded by findings of fact.
But on the proved facts some clear questions of law arose for decision and, therefore, this was not a case in which the High Court should have dismissed the appeal in limine.
[507F]