judgement:
Civil Appeal No. 2265 of 1970 From the Judgment dated 10.10.1969 of the Calcutta High Court.
D.N. Mukherji and G.S; Chatterjee for the Appellant.
H.K. Puri for the Respondent.
The Judgment of the Court was delivered by MISRA J.
The present appeal by special leave directed against the judgment of the Calcutta High Court dated 10th October, 1969 involves the interpretation of sections 6 and 72 of the Bengal Cess Act, 1880 and arises in the following circumstances.
The respondent company is the owner of a colliery situate at Ghusick, Kalapahari within the district of Burdwan.
As usual with C ' ' the coalmines the percolated water which accumulates in the colliery has to be pumped out and discharged at the surface to prevent inundation of the colliery and for proper working of the mine.
The percolated water of the mine of the respondent company was pumped out and sold by the company to a neighbouring glass factory, the Hindustan Pilkington Glass works Limited, which required such water for cooling and other purposes The respondent 354 company by such sale of water received for the year 1958 59 a sum of Rs 42,073.00, which amount was entered in their profit and loss account as miscellaneous income, besides the sum of Rs. 5,82,000.00 shown as the sale price of coal of the said colliery.
The respondent company had been selling such precolated water in the earlier years also and paying cess there on.
When the cess Authorities assessed cess on this income under the Bengal Cess Act, 1880 for the year 1958 59 the respondent for the first time claimed exemption from the assessment of cess in respect of the sale price of water amounting to Rs. 42,073,00, although the respondent never claimed such exemption in respect of such sale proceeds of water in the previous years.
The Cess Deputy Collector of Burdwan by his order dated November 26,1959 disallowed the claim of exemption treating the said sum of Rs. 42,073.00 as one of the items constituting the annual net profit derived from the mine in the process of extracting coal and by using the company 's instruments equipments and staff.
The respondent company took up the matter in appeal before the Collector of Burdwan, who found that the cess levied was not contrary to the provisions of the Act and the rules freedom there under, as the income was derived by the employment of machinery and staff of the coalmine.
The respondent feeling aggrieved went up in revision before the Commissioner of Burdwan Division but that also met the same fate.
The Commissioner took the view that the water which is pumped out to save the colliery from drowning is then sold at vast profit and, therefore, it comes within the ambit of the term 'gross earnings ' and as such was liable to cess.
The respondent went up in further revision before the Board of Revenue but the second revision was also dismissed.
Undaunted by these failures the respondent took up the matter before the High Court under article 226 of the Constitution which was eventually allowed by the High Court.
It took great pains to come to a conclusion that the water discharged from the mine was not a mineral It was also not land within the meaning of s.6 of the Bengal Cess Act.
On these findings the High Court observed: "The tenant of a mineral, particularly of a coalmine, is normally under the vanishing expenses of sinking new pits, diving gallaries, pumping out water and the like and some 355 of the expenses representing capital might be disallowed as working expenses of the colliery but that does not justify the authorities, as in this case, to imposes on the sale price of water. and the sale price of such commodity does not form part of the annual net profit from the mine." B The High Court referred to a large number of cases, English and American, and the history of the Cess Act to arrive at the above conclusion.
We are of the opinion that the High Court has gone off the track.
It was not at all necessary to enter into the complicated question whether the water oozing out of the mine was a mineral.
In the present case we are concerned only with the interpretation of sections 6 and 72 of the Bengal Cess Act.
Section 6 at the material time, that is, for the year 1958 59.
in so far as relevant, ran as follows: "6.
The road cess and the public works cess shall be assessed on the annual value of lands and, until provision to the contrary is made by Parliament, on the annual net profits from mines, quarries, tramways, railway sand other immovable properties ascertained respectively as in this Act prescribed.
" Section 72 reads: "On the commencement of this Act in any District and thereafter before the close of each year, the Collector of the District shall cause a notice to be served upon the owner, chief agent, manager or occupier of every mine, quarry, tramway, railway and other immovable property not included within the provisions of Chapter II; such notice shall be in the form in Schedule contained, and shall require such owner, chief agent, manager or occupier .
to lodge in the office of such Collector within two months a return of the net annual profits of such property, calculated on the average of the annual net profits thereof for the last three years for which accounts have been made up.
Such Collector may in his discretion extend the time allowed for lodging such return.
356 The key words in these two sections on which the fate of this case hinges, are "on the annual net profits from the mines.
" The precise question for consideration is whether the sale price of water pumped out and discharged from the mine could be included in the annual net profits from the mine.
If so, the cess levied on the respondent company was fully justified by s.6.
The contention on behalf of the respondent company is that the sale price of the water discharged from the mine cannot be taken to be a profit from the mine.
We find it difficult to accept the contention.
There is no doubt that water comes out of the mine and that water has got to be pumped out from the mine to save it from being inundated or to enable the working of the mine.
But if that water is sold away for a price and an income derived in that way, why can it not be said to be a profit from the mine ? The exercise by the High Court in referring to a large number of cases of England and America are not of much relevance on the problem before us.
A bare perusal of the section makes it evident that the income derived by the sale of water pumped out from the mine is a profit from the mine.
Reliance was placed on Tata Iron and Steel Co. Ltd. vs The State of Bihar(1).
In that case the appellant company was the owner of certain mines in Bihar from where it extracted iron ore which it utilised in its factory at Jamshedpur for making iron and steel.
Under sections 5 and 6 of the Bengal Cess Act, 1880, as amended in Bihar, all immovable property situate in any part of State of Bihar was liable to payment of local cess, which in the case of mines was to be assessed on the annual net profits from them.
For the assessment year 1954 56 the company was assessed by the Cess Deputy Collector on the basis that it had made a profit of Rs. 4.7.0 per ton of iron ore extracted.
The appellant claimed that it was not liable to the levy of cess under the Act because it did not sell any ore as such and could not, therefore, be treated as having made 'any profit ' from the mines within the meaning of s.6 of the Act.
The question for consideration was whether a person could in law be said to have derived profit from a mine when the ore extracted is not sold by him as such but is utilised by him for the purpose of manufacturing a finished product which he sells.
The contention of the appellant company that the ore extracted was not sold as such (1) [1963]1 SCR 199.
357 but was used by the owner in the production of other finished pro ducts and, there was no question of the owner of the ore realising profit from the mine, was repelled by this Court and it observed: "In our opinion therefore the principle of apportionment resting on the disintegration of the ultimate profits realised by the assessee is implicit in a provision like that in S.6 of the Act under which the profit derived from an initial activity is brought to charge where further activities are undertaken by an assessee with reference to the ore won `and a profit is realised by the sale of the end product.
" The principle laid down in this case fully supports the contention of the appellant in the instant case.
The facts of the present case go a step further inasmuch as the water pumped out from the mine was separately sold for a price and, therefore, obviously it is covered by the provisions of s.6, read with s.72 of the Act.
The contention on behalf of the State has considerable force and must be accepted.
The counsel for the respondent on the other hand contended that the income by sale of water was only a casual income and not a regular permanent income and, therefore, it could not be assessed to cess.
We see no force in this contention.
Section 6 does not make any distinction as to whether the income is casual or a regular one.
All that we are concerned with is whether the income derived by the sale of water pumped out from the mine is included in the profit from the mine or not.
We have not the slightest doubt that the income derived by sale of water pumped out from the coalmine constitutes a profit derived from the mine.
F For the foregoing discussion the appeal must succeed.
It is accordingly allowed and the judgment of the High Court is set aside.
There shall, however, be no order as to costs.

summary:
The percolated water of the coal mine of the respondent Company was pumped out and sold by the Company to a neighbouring glass factory which required such water for cooling and other purposes.
The respondent Company had been selling such percolated water for several years and was paying cess thereon under the Bengal Cess Act, 1880.
However for the year 1958.
59 when the cess authorities assessed cess on this income, the respondent for the first time claimed exemption from the assessment of cess in respect of the sale price of water.
The Cess Deputy Collector however disallowed the claim of exemption treating the amount in respect of sale price of water as one of the items constituting the annual net profit derived from the mine.
In appeal by the respondent Company, the Collector found that the cess levied was not contrary to the provisions of the Act.
The Commissioner dismissed the revision petition, taking the view that the water which is pumped out to save the colliery from drowning is sold at a vast profit and therefore it comes within the ambit of the term 'gross earnings ' and as such was liable to cess.
A further revision to the Board of Revenue, was also dismissed.
However, the respondent 's writ petition to the High Court was allowed, and the order levying cess was quashed, holding that the water discharged from the mine was neither a 'mineral ' and also nor 'land within the meaning of Section 6 of the Bengal Cess Act.
353 Allowing the Appeal of the State to this Court A ^ HELD: 1.
The Cess levied on the respondent Company is fully justified by Section 6 of the Bengal Cess Act 1880.
[356A] 2.
There is no doubt that water comes out of the mine and that water has got to be pumped out from the mine to save it from being inundated or to enable the working of the mine.
But if that water is sold away for a price and an income derived in that way it cannot be said that it is not a profit from the mine.
[356B C] 3.A bare perusal of Section 6 makes it evident that the income derived by the sale of water pumped out from the mine is a profit from the mine.
[356D] 4.
Section 6 does not make any distinction as to whether the income is casual or a regular one.
[357E] Tata Iron and Steel Co. Ltd. vs The State of Bihar, [1963] Supp. 1 SCR 199 referred to.


judgement:
Civil Appeal No. 2650 of 1984 Appeal U/s 116 A of the R.P. Act 1951 from the Judgment and Order dt.
30.5.84 of the Punjab & Haryana High Court at Chandigarh in E.P. No. 7 of 1982.
H.L. Sibal, Kapil Sibal.
Mrs. Madhu Tewatia Singh and N.M. Popli for the Appellant.
S.N. Kacker and Ravinder Bana for the Respondent.
This appeal by the respondent in Election petition No. 7 of 1982 of the file of the Punjab and Haryana High Court is directed against the judgment of a learned Single Judge declaring the appellant 's election from the Jind constituency of the Haryana Legislative Assembly as void on the ground that the nomination paper of a candidate Dog Ram was improperly rejected.
The last date for filing nomination papers was 24.4.1982, and in the scrutiny made on 26.4.1982 nomination papers of two candidates including Dog Ram were rejected by the Returning Officer.
The principal contest was between one Mange Ram, a Congress (I) candidate and the appellant, an independent candidate who had been set up by the Lok Dal party.
The polling was on 19.5.1982 and after the counting was made on 20.5.1982 the appellant was declared elected from the Jind constituency.
The election petition was filed by the respondent Sat Pal, an elector in the Jind constituency.
His case in the election was that Dog Ram was registered as an elector at Serial No. 177 and house No. 57 in part 39 of the electoral roll of the Jind constituency.
Ram Partap who proposed Dog Ram as a candidate, was registered as elector at Serial No. 313 and house No. 6 in part 39 of the same constituency.
The name of Dog Ram and his postal address were correctly given in the nomination paper.
But the part of the electoral roll was mentioned as 57 instead of 39 by an inadvertant mistake committed by the person who filled the nomination paper.
Similarly, in the case of the proposer Ram Partap, the serial number of the elector and the number of the constituency were given correctly but the number of his house was wrongly entered 325 in the column meant for the part of the electoral roll.
These inaccuracies in the nomination paper were technical in nature and should have been rectified by the Returning Officer at the time of scrutiny.
No other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram but the Returning Officer on his own rejected the nomination paper by the following order: "Particulars of the candidate and the proposer have been wrongly entered in the nomination paper.
The candidate who is present in person failed to show me the voters ' list where his and the proposer 's names are entered.
Hence rejected.
" The appellant contested the election petition contending that the Returning Officer compared the admittedly inaccurate particulars given in the nomination paper with those entered in the para of the voters ' list mentioned in the nomination paper and found them to be incorrect and asked Dog Ram to show the names of himself and his proposer Ram Partap in the electoral rolls and that as the candidate was unable to do so he rejected the nomination paper and was right in doing so.
In the first part of the nomination paper, Annexure R 6 Ram Partap, P.W. 2 has stated thus under his signature: E "I nominate as a candidate for election to the Legislative Assembly from the 48 Jind constituent assembly: Candidate 's name : Dog Ram s/o Mohan Lal Postal Address : Village Amar Heri, Post Office Ahirka (Jind) His name is entered at Sl.
No. 177 in Part No. 57 of the electoral roll for the 48 Jind Assembly Constituency.
My name is Ram Partap and it is entered at Sl.
No. 313 in part No. 6 of the electoral roll for the 48 Jind assembly Constituency.
" In Part No. 39 of the voters ' list relating to Amar Heri village, Dog Ram is entered at Sl.
No. 177 and House No. 57 and Ram 326 Partap, P.W. 2 is entered at Sl.
No. 313 and house number 6.
Thus it is seen that in the nomination paper, Serial Nos of Dog Ram and Ram Partap, P.W. 2 have been correctly given as 177 and 313 respectively, but the part numbers have been given wrongly as 51 and 6 respectively which are their respective house numbers instead of the correct part No. 39.
The learned Single Judge who tried the election petition framed the issue as to whether the nomination paper of Dog Ram was improperly rejected.
On the side of the respondent three witnesses were examined and they are: the election Kanungo Jai Singh, P.W. 1 the proposer Ram Pratap P.W. 2 and the Congress (I) candidate Mange Ram, P.W. 3.
The appellant relied upon the evidence of his sole witness Gulab Singh, R.W.1.
P.W. 1 has stated in his evidence that Dog Ram son of Mohan Lal was registered as voter at Sl.
No. 177 in house No. 57 and that the proposer Ram Partap, P.W. 2 was registered as voter at Sl.
No. 313 in part 39 of the electoral roll of Amar Heri village.
In his cross examination, P.W. 1 has admitted that in Jind constituency there were 77000 voters entered in 97 parts of the electoral roll and that the voter at Sl.
No. 177 in part No. 57 is one Krishan son of Ami Lal of Jalalpura Khurd village while the voter at Sl.
No. 313 in Part No. 6 is one Premo wife of Satbir of Barsana village.
P.W. 2 has stated in his evidence that he and Dog Ram presented the nomination paper to the Returning Officer on 24.4.1982 and he told them that it w as in order and that at the time of the scrutiny he told them it that there were some mistakes in the nomination paper.
He has further stated that he and Dog Ram volunteered to show the actual voters ' list but he declined to have a look at the voters ' list relating into Amar Heri village and insisted that the particulars mentioned in the nomination paper alone could be seen by him.
P.W. 3 has stated in his evidence that nobody raised any objection to the nomination paper filed by Dog Ram but the Returning Officer him self raised an objection saying that the particulars are not properly filled in.
He has further stated that Dog Ram and P.W. 2 were present at that time and they told the Returning Officer that if the voters ' list was supplied to them they would be in a position to show the correct particulars and he did not comply with their request.
On the other hand, R.W. 1 who had filed a recrimination petition 327 against Mange Ram in Election Petition No. 8 of 1982, has stated in his evidence that the Returning Officer asked Dog Ram to show the relevant part and the serial number in the voters ' list where his name is entered and Dog Ram failed to do so though the voters ' list was lying on the Returning Officer 's table at that time and an opportunity was given to Dog Ram for seeing the same and that the Returning Officer, therefore, rejected the nomination paper of Dog Ram after raising an objection suo moto.
The learned Single Judge found that the candidate Dog Ram and the proposer Ram Partap were registered as voters in the Jind constituency and were qualified to contest in the election and propose the candidate respectively.
This fact was not disputed before the learned Judge.
He found that errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls and the nomination paper do not constitute defects of a substantial character as mentioned in the proviso to section 33(4) of the Representation of People Act, 1951 (hereinafter referred to as the 'Act ') which reads: "33(4) On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral, rolls: E Provided that on misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical, technical or 1 printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer, inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the 1 nomination paper shall be over looked", 328 Though there is no allegation in the election petition that the Returning Officer assured the candidate Dog Ram and the proposer Ram Partap, P.W. 2 that the nomination paper was in order, the learned Single Judge accepted evidence of P.W. 2 that when he and the candidate Dog R am presented the nomination paper on 24.4.1982, the Returning Officer told them that it was in order, and he held that the Returning Officer had thus tripped them into an error and observed that had he told them that there were some discrepancies in the nomination paper they would have either made the corrections then and there or would have gone more fully prepared to meet objections at the time of scrutiny.
In that view he has observed in his judgment: "If an act or omission on his part is shown to have tripped into an error an otherwise competent person to offer himself as a candidate, who inspite of being desirous of fighting election is unable to do so because of the error committed by the Returning Officer then such a candidate will be allowed to urge that because of the non compliance by the Returning Officer with the provisions of the Act the people of the constituency have not been able to make a choice in accordance with law.
In my considered opinion it would be a fit case to hold that the result of the election has been materially affected.
This in effect is the law and spirit of section 100(1) (d) (iv) of the Act.
The scrutiny was held in Jind which is a district town and the Returning Officer is normally expected to have the assistance of the election staff including the Election Kanungo at the time of the scrutiny.
If he had put a few questions to Dog Ram and Ram Partap, P.W. 2 about their residence and numbers of their house, the Kanungo would have at once brought out the relevant electoral rolls containing the names of these two persons.
For reasons aforementioned I am of the opinion that the nomination paper of Dog Ram candidate had been wrongly rejected", He accordingly allowed the election petition with costs assessed at Rs. 2500 and declared the appellant 's election as void.
The only issue framed by the learned Single Judge as stated earlier is: "Whether the nomination paper of Shri Dog Ram contesting candidate has been improperly rejected", From this it does not 329 follow as Mr. Sibal, learned counsel appearing for the appellant contends, that the first respondent had not challenged the rejection of the particulars in the nomination paper so far as they relate to the proposer Ram Partap, P.W.2 for they too form an integral part of the nomination paper and the consequence would be the same, namely, rejection of the nomination paper of the candidate even if it be for the defect in the particulars relating to the proposer.
According to r. 4 of the Conduct of Election Rules, 1961 (hereinafter referred to as the 'Rules ') every nomination paper presented under sub section
(I) of section 33 of the Act may be completed in such one of the forms 2A to 2E as may be appropriate.
Section 33(i) relating to representation of nomination papers and requirements for a valid nomination says that the nomination paper shall be completed in the prescribed form and signed by the candidate and an elector of the constituency.
It is clear from this sub section that the proposer of the candidate must be elector of the constituency.
Section 32 of the Act relating to nomination of a candidate for election says that any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and the Act or under the provisions of the , as the case may be.
Section 5 of the Act relating to qualifications for membership Of a Legislative Assembly says that "a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless (a) in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly Constituency in that State; (b) in the case of a seat reserved for an autonomous district of Assam, he is a member of a Scheduled Tribe of any autonomous district and is an elector for the Assembly Constituency in which such seat or any other seat is reserved for that district; and (c) in the case of any other seat, he is an elector for any Assembly Constituency in the State".
We are concerned in the present case with clause (c) of section 5 of the Act.
Therefore, the candidate nominated must be an elector for 330 any Assembly Constituency in the State concerned.
Form 2B is the appropriate form in the present case.
It is found at page 239 of the Manual of Election Law corrected upto December 1982.
It consists of four parts, the first relating to the candidate and the proposer, the second relating to delivery of the nomination paper to the Returning Officer, the third relating to the decision of the Returning Officer accepting or rejecting the nomination paper and the fourth relating to the receipt of the nomination paper and notice of scrutiny.
The first part has to be signed by the candidate and the proposer and the other three parts have to be signed by the Returning Officer.
The first part is extracted for easy reference: "Election to the Legislative Assembly of State I nominate as a candidate for election to the Legislative Assembly from the assembly constituency.
Candidate 's name _ His postal address His name is entered at section No. in part No. of the electoral roll for the assembly constituency.
My name is and it is entered at section No. in Part No. of the electoral roll for the z assembly constituency.
Date (Signature of proposer) I, the above mentioned candidate assent to this nomination and hereby declare (a) that I have completed years of age; (b) that I am set up at this election by the party; (c) that the symbols I have chosen are, in order of reference (i) (ii) and (iii) 331 I further declare that l am a member of the caste/tribe which is a scheduled caste/tribe of the State of in relation to (area) in that State.
Date (Signature of candidate) In the first part the proposer must mention the name of the candidate and his own name and the serial numbers and part numbers of the electoral roll of the Assembly Constituency concerned where the name of the candidate and his own name are entered and he is also required to furnish the postal address of the candidate.
It may be stated that there is no specific provision in the Rules for furnishing the postal address of the candidate in the nomination paper though in Form 2B it is required to be given by the proposer.
It is obvious that the serial number and the part number of the electoral rolls of the constituency concerned relating to a candidate and the proposer are required to be given in the nomination form in order to enable the Returning Officer to verify whether the candidate and the proposer are registered as electors and qualified to be nominated as a candidate and to propose the candidate as a candidate for filling a seat in the Legislative Assembly.
Rule 2(f) of the Rules says that the "Electoral roll number of a person means; (i) the serial number of the entry in the electoral roll in respect of that person; (ii) the serial number of the part of the electoral roll in which such entry occurs and (iii) the name of the constituency to which the electoral roll relates.
" These particulars have to be furnished in the nomination paper.
Section 33(4) of the Act says; "On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls: Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper 332 with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
" The Hand Book for Returning Officer, issued by the Election Commission of India, says what the Returning Officer and the Specified Assistant Returning Officer should do as each nomination paper is filed.
It says that the Returning Officer or Specified Assistant Returning Officer is not to hold a formal scrutiny of any nomination paper at this stage.
If the candidate is an elector in the constituency concerned, the Returning Officer or the Specified Assistant Returning Officer should compare the entries in the nomination papers with the entries in the electoral roll relating to the serial number and the name of the candidate and the proposer.
If he comes from any other constituency, the officer should compare the entries in the nomination paper with the entries relating to the candidate 's name in the electoral roll of that constituency or of the relevant part thereof or a certified copy of such entry.
The candidate is required by law to produce before the officer such electoral roll or relevant part thereof or a certified copy of the relevant entries thereof as per section 33(5) of the Act.
Legally, the responsibility for producing documentary evidence of registration as elector in a different constituency rests entirely on the candidate.
The instruction reiterates what is contained in the proviso to section 33(4) of the Act and further states that the points which the Returning Officer or Specified Assistant Returning Officer are required by section 33(4) to be disposed of should be invariably disposed of at time of the receipt of the nomination paper and that it will be improper for the officer at the time of scrutiny to reject the nomination paper for defects which could have been cured at the earlier stage of presentation of the nomination paper.
It was conceded by Mr. Kacker, learned Senior Advocate appearing for the respondent, that the enquiry at the stage of receipt Of nomination paper is what he called a peripheral one and that no legal consequence flow from the omission on the part of the Returning Officer or specified Assistant Returning Officer to carry out his responsibility at the stage of receipt of the nomination paper.
333 Section 36 of the Act relating to scrutiny of nomination paper reads: "36(1) On the date fixed for the scrutiny of nominations under section 30), the candidates, their election agents, one proposer of each candidate, and one other person duly authorized in writing by each candidate, but no other per son, may attend at such time and place as the returning officer may appoint; and the returning officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds: (a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen, to fill the seat under any of the following provisions that may be applicable, namely: Articles 84,102,173 and 191, Part II of this Act and section 4 and 17 of the ; (b) that there has been a failure to comply with any of the provisions of Section 33 or section 34; or (c) that the signature of the candidate or the proposer on nomination paper is not genuine.
Sub section 6 of section 36 requires that the Returning Officer shall endorse on each nomination paper his decision accepting or rejecting the same and says that if the nomination paper is rejected he shall record in writing a brief statement of his reasons for such rejection.
334 In the present case the proposer P.W.2 had mentioned the names of himself and the candidate Dog Ram correctly in the nomination paper.
He had also mentioned their serial numbers as 177 and 313 which would tally with their names if the correct part No. 39 of the electoral roll had been mentioned in the nomination paper.
But, unfortunately instead of entering that correct part No. 39 in the nomination paper, P.W.2, who claims to have got the nomination paper filled in by an Advocate of Jind whose name he does not know, had mentioned the part No. as 57 in regard to the candidate Dog Ram and as 6 in regard to himself which are really their house numbers.
The Returning Officer has, therefore, passed the order, exhibit P.W.1/B, extracted earlier in this judgment, rejecting the nomination paper.
What happened before he passed that order is established b y the evidence which would be considered hereafter.
Before we proceed to consider the evidence we wish to state that the learned Single judge has been stayed by two things in reaching the conclusion that the rejection of the nomination paper of Dog Ram was improper.
They are: (1) that errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or the nomination papers do not constitute defects of a substantial character as noted in the proviso to section 33 (4) of the Act and (2) that the Returning Officer had told the candidate Dog Ram and the proposer P.W.2 when the nomination paper was presented, that it was alright and thus tripped them into an error, for had he told them at that time that there were some discrepancies in the nomination paper in regard to electoral roll numbers they would have either made the corrections then and there or would have gone more fully prepared to meet objections at the time of scrutiny.
The serial numbers and part numbers mentioned in the nomination paper relate to Amit Lal of Jalalpura Khurd and Premo wife of Satbir of Barsana village and not to the candidate Dog Ram and the proposer P.W.2.
It is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination paper do not constitute defects of a substantial character.
They would not be defects of a substantial character only if at The time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate or his proposer or any other person is able to find out the correct serial number of the candidate and the proposer by reference to the Correct part number of the electoral roll.
If that is 335 not the case, he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency.
As regards the tripping by the Returning Officer we find that there is no allegation in the election petition that there was any assurance by the Returning Officer at the time of receipt of the nomination paper that there was nothing wrong in it.
Even according to Mr. Kacker the enquiry by the Returning Officer at the time of delivery of the nomination paper is only a peripheral enquiry in which the Returning Officer in the present case seems to have been satisfied by finding two numbers each given in regard to the candidate and the proposer that they were the serial number and part number of the electoral roll which the proposer was bound to give correctly in regard to the candidate and himself in the nomination paper.
In the absence of any such allegation oz tripping in the election petition we think that the evidence of the proposer P.W.2 which is not even corroborated by the evidence of any other witness that he and the candidate presented the nomination paper to the Returning Officer and showed him the voters ' list and that he told them then that the nomination paper was in order.
This Court has held over and over again that no amount of evidence can be looked into upon a plea which was never put forward in the pleadings.
In these circumstances we think that the learned Single Judge was not justified in accepting the evidence of P.W.2 and holding that the Returning Officer was guilty of tripping the candidate and the 'proposer by any assertion on his part into any believing that there was nothing wrong in the nomination paper.
The candidate and the proposer are always expected to go fully prepared to meet any objection that may be raised by any candidate or even by the Returning Officer himself suo moto at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the Returning Officer had received the nomination paper without raising any objection.
It is at the time of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny.
P.W. 1 has deposed merely about the concerned serial numbers 177 and 313 and part numbers 6, 39 and 57 of the electoral roll.
The proposer P.W.2 has stated in his evidence that when the Returning Officer told him and his candidate Dog Ram at the time 336 of the scrutiny that there was some mistake in filling the nomination paper, both of them volunteered to show the actual entry in the electoral roll of Amar Heri village but he declined to have a look at it and insisted that the particulars mentioned in the nomination paper alone could be seen by him.
The Returning Officer who had to verify the serial numbers and part numbers etc.
given in the nomination paper with reference to the entries in the electoral roll could have said that there were mistakes in the nomination paper only after having looked into the electoral roll and he would not have stated that he would see only the numbers mentioned in the nomination paper.
In his cross examination P.W.2 has admitted that the Returning Officer told them at the time of the scrutiny that they should show him their names in the electoral roll.
But he has denied that Dog Ram replied that he was not in a position to point out his name or his own name in the electoral roll.
He has stated that on the other hand they asked the Returning Officer to give them the electoral roll relating to Amar Heri village and he declined to do so and that they did not protest against that highhandedness of the Returning Officer.
The Returning Officer must have had the electoral rolls before him at the time of the scrutiny which could not be done without the electoral rolls before him.
R.W.I, an Advocate who was himself a candidate and had retired at a later stage, has stated in his evidence that the electoral rolls were lying on the table of the Returning Officer at the time of the scrutiny.
There is no reason for not accepting this evidence of R.W.1.
The electoral rolls were lying on the Returning Officer 's table at the time of the scrutiny and, therefore, there would have been no necessity for the candidate Dog Ram and P.W. 2 to ask the Returning Officer to give them the electoral roll relating to Amar Heri village for clearing his doubt.
Therefore, we are unable to accept this evidence of P.W.2.
P.W. 3.
also has stated in his evidence that both Dog Ram and P.W.2 told the Returning Officer when he raised objection sue moto at the time of the scrutiny that they filled in the nomination papers after looking at the particulars in the electoral rolls relating to Amar Heri village and that if the electoral roll of that village was given to them they would be in a position to show him the correct particulars, but he declined to oblige them and insisted that they should show that the serial number and part number mentioned in the nomination paper tally.
He has stated that he too told the Returning Officer that he should give them the facility of showing the particulars in the electoral roll of Amer Heri village but he declined to comply with his 337 request and stated that he would see only the serial number and the part mentioned in the nomination paper.
He has stated that he was interested in the acceptance of the nomination paper of Dog Ram because he belongs to rural part and was the Lambardar of his village.
However, he has admittedly not made any report to anyone about the alleged high handedness of the Returning Officer though he was a Minister of the State Government at that time and Dog Ram is stated to have told him that the Returning Officer was not acting fairly.
What is more he has not made this alleged improper rejection of the nomination paper of Dog Ram as a ground in Election Petition No. 8 of 1982 which he had filed for setting aside the election of the appellant on the ground of corrupt practice etc.
and claiming the seat for himself.
P.Ws. 2 and 3 have, no doubt, denied that P.W 2 was not present during the scrutiny on 26.4.
1982 whereas R.W. 1 has stated that Dog Ram alone was present and P.W. 2 was not present at that time.
R.W. 1 has stated in his evidence that though nobody objected to the nomination paper of Dog Ram, the Returning Officer asked Dog Ram during the scrutiny in his presence to show the serial number and part number where his name is entered in the electoral roll, that Dog Ram could not do so though the electoral roll was lying on the table of the Returning Officer and Dog Ram was given the opportunity of seeing the same and that thereupon the Returning Officer wrote out his order exhibit P.W.1/B rejecting the nomination paper of Dog Ram then and there and read it out.
The evidence of R.W.
I is largely corroborated by the Returning Officer 's order Ex P.W.1/B which has been set out in the earlier part of this judgment.
There is no reference to the presence of P.W.2 during the scrutiny in that order.
Therefore, it is probable that P.W.2 was not present during the scrutiny as stated by R.W.1.
The evidence of P.W.3 that the Returning Officer did not ask Dog Ram to show the names of himself and his proposer in the electoral roll is inconsistent with the allegation in the election petition as also the evidence of P.W. 2 that the Returning Officer said so.
Therefore, we are unable to accept the evidence of P.W.3.
But we accept the evidence of R.W. 1 and find that that the Returning Officer found the discrepancy in the names serial number and part number mentioned in the nomination paper on the one hand and those found in the electoral roll with reference to those numbers on the other and that on account of his inability to ascertain with the particulars made available before him whether the candidate Dog Ram and his proposer P.W. 2 were electors is 338 the constituency he asked the candidate Dog Ram to point out the names of himself and his proposer in the electoral roll to satisfy him that they are electors in the constituency and that as he was unable to do so he rejected the nomination paper by his order exhibit
P.W. 1/B. Learned counsel for the parties invited our attention to certain decisions.
We think it necessary to refer to only three of them.
In Hira Singh Pal vs Madan Lal(1) a candidate had filed two nomination papers and both of them were rejected by the Returning Officer.
In rejecting the nomination papers the Returning Officer observed as follows; "Shri Madan Lal, resident of village Parchech, P.O. Ghanahatti, District Mahasu filed two nomination papers before me on 20th January, 1967 which bear serial Nos.
5 z 6.
According to the entry in the nomination paper serial No. 5 Shri Anant Ram proposer has been shown to be entered at serial No. 383 of part 13 of the electoral rolls for 9 Arki Assembly Constituency.
From the comparison with the final copy of electoral roll for this constituency, at serial No. 383 of part 13 the name of Shrimati Phullu wife of Shri Nirjal Singh has been entered.
As such this entry in this nomination paper is wrong.
As regards nomination paper bearing serial No 6 the candidate has shown his name to be entered at serial No. 504 of part 2 of the electoral rolls for 9 Arki Assembly Constituency.
From the comparison wit h the aforesaid entry in the final copy of the electoral rolls of the aforesaid serial No. Of the aforesaid part one Shrimati Darshnoo wife of Shri Ghanaya Ram has been entered.
Hence this entry in the nomination paper bearing serial No. 6 is incorrect.
At the time of scrutiny neither Shri Madan Lal nor his proposer or election agent nor any one authorised on his behalf was present so that he could be given an opportunity for correcting these entries.
This candidate while presenting his nomination papers claimed to be the substitute (1) ; 339 candidate of the Indian National Congress who have put up Shri Hari Dass as their only candidate.
In view of the aforesaid circumstances it cannot be ascertained whether Shri Madan Lal is an elector in any Assembly Constituency of Himachal Pradesh or that his proposer Shri Anand Ram is an elector in the 9 Arki Assembly Constituency.
Shri M.R. Gupta, Advocate the person authorised on behalf of Shri Hari Dass was informed to convey to Shri Madan Lal that he can approach me any time upto 3.00 p m. today for correcting these entries.
Shri Madan Lal has not turned up as yet.
It is now 15 minutes past 3.00 p.m.
In these circumstances there is no alternative but to reject both these nomination papers as the candidate does not seem to be interested in correcting these entries and filing proper and valid nomination papers.
These orders are passed ex parte since Shri Madan Lal has not cared to turn up.
" This Court has observed in that decision: ".
As mentioned earlier, the errors found in the nomination papers are purely clerical errors.
The Returning Officer had the duty to scrutinize the nomination papers when they were presented for finding out whether there were any clerical mistakes in the same.
Under that provision he was required to find out whether the names of the candidates as well as their proposers and seconders were correctly mentioned in the nomination papers He was also required to see whether their place in the electoral roll was correctly mentioned in the nomination papers.
Evidently the Returning Officer failed in his duty.
Further, when he scrutinised the nomination papers on January 21, 1967, he had before him all the required information.
It may be that while scrutinising the first nomination paper (marked as No. S) he had no material before him to find out whether the proposer of the candidate was really an elector in the constituency or not; but when he came to the second nomination paper where the proposer 's name as well as his place in the electoral roll is correctly mentioned, it was improper on his part to have rejected that nomina 340 tion paper.
It is true that in that nomination paper, it had been mentioned that the candidate 's name is found at serial No. 504 of part 2 of 9 Arki Assembly Constituency, though in fact is found at serial No. 504 in part 12 of that constituency; but from the first nomination paper, the Returning Officer could have easily found out the correct part of the electoral roll.
All the required information was before him.
Obviously he rejected the nomination papers for the reason that the respondent was only a dummy candidate but that was not a matter for him to decide.
If he was a dummy candidature there was occassion for him to withdraw his candidate after the scrutiny of the nomination papers.
Therefore, it is quite clear that the respondent 's nomination papers were improperly rejected.
Such a rejection was impermissible under section 36 and the same is a ground for setting aside the election under section 100 of the Representation of the People Act.
" That was a case where from a mere look at the two nomination papers and the electoral rolls the Returning Officer could have found out the correct part of the electoral roll and all the required materials were before him and, therefore, it has been held that the rejection of the nomination papers was improper.
But that is not the case here.
There was no such prima facie material before the Returning Officer in the present case to find out the correct part number of the electoral roll in which the candidate Dog Ram and the proposer P.W. 2 were registered as electors.
There were as many as 77,000 voters in the 97 parts of the electoral roll in Jind constituency and even Amar Heri village had two part numbers in the electoral roll.
The postal address of the candidate Dog Ram given in the nomination paper was not a sure guide for the Returning Officer to trace the correct part number of the electoral roll in regard to the candidate Dog Ram and his proposer P.W. 2.
The Returning Officer who is expected to hold only such summary enquiry as he thinks fit is not expected to himself find out the correct part number of the electoral roll by making a roving enquiry and questioning the candidate or his proposer.
In the circumstances, he asked the candidate, who was present before him, to point out the entries in the electoral roll where the names of himself and his proposer are found as electors and as he was not in a position to do so he rejected the nomination paper.
Therefore, the observations made in that decision do not help the respondent.
341 In Ram Awadesh Singh vs sumitra Devi & Ors (1) the High Court set aside the election of the appellant before this Court on the ground that his nomination paper had been improperly accepted and the election had been materially affected thereby.
It was proved that the Returning Officer did look into the nomination paper, but unfortunately he did not notice that the appellant 's name had been removed from the Arrah constituency.
The appellant had with him a certified copy of the electoral roll of Sandesh constituency where his name was enrolled and he showed it to the Returning Officers.
The mistake complained of occurred because both the appellant as well as the Returning Officer looked into the main voters ' list of the Arrah constituency but overlooked the deletion noted in a separate list.
In these circumstances, it has been held by this Court that the High Court was not justified in allowing the election petition on the ground that the nomination paper of the appellant was improperly accepted.
This decision will not apply to the facts of the present case where with the serial numbers and the numbers given as part numbers of the candidate and the proposer in the nomination paper D their names could not be traced in the concerned parts as registered voters.
The Returning Officer, therefore, felt helpless and asked the candidate to point out the names of himself and his proposer in the electoral roll which he did not do.
The decision in Viveka Nand Giri vs Nawal Kishore Sahi(2) also would not apply to the facts of the present case as the defect in the nomination paper in that case was only the difference in the age in the electoral roll and the nomination paper.
It has been held by this Court that it was a case of inaccurate description mentioned in section 33(4) of the Act which ought to have been got corrected or overlooked by the Returning Officer having regard to the language of the proviso to that sub section.
For the reasons mentioned above we are of the opinion that the Returning Officer in the present case could not be said to have impropertly rejected the nomination paper Dog Ram.
The appeal is accordingly allowed with costs here as well as in the High Court.
A.P.J Appeal allowed .

dataset_name: IN-Abs

summary:
The respondent in the appeal an election, filed an election petition challenging the election of the appellant to the Assembly.
He contended in the petition that in the election to the Haryana Legislative Assembly from Jind constituency one Dog Ram filed nomination paper.
His name was proposed by Ram Pratap, an elector of the constituency.
Dog Ram Candidate was registered as an elector at serial No. 177 and house No. 57 in part 39 of the electoral roll of the constituency whereas the proposer was registered as elector at serial No. 313 and house No. 6 in part 39 of the same constituency.
The name and postal address of Dog Ram were correctly given in the nomination paper but the part of the electoral roll was mentioned as 57 instead of 39 by an inadvertent mistake committed by the person who filed the nomination paper.
Similarly, in the case of the proposer, the serial number of the elector and the number of the constituency were given correctly but the number of his house was wrongly entered in the column meant for the part of the electoral roll.
At the time of scrutiny no other candidate or proposer objected to the acceptance of the nomination paper of Dog Ram but the Returning Officer on his own rejected the nomination paper on the ground that particulars of the candidate and the proposer have been wrongly entered in the nomination paper.
The appellant contested the election petition contending that the Returning Officer had compared the admittedly inaccurate particulars given in the nomination paper with those entered in the part of the voters ' list mentioned in the nomination paper and found them to be incorrect and asked candidate Dog Ram to show the names of himself and his proposer in the electoral roll and that as the candidate was unable to do so he rejected the nomination paper and was right in doing so.
In the nomination paper the serial numbers in the voters ' list of the candidate and his proposer have been correctly given as 177 and 313 respec 322 tively but the part numbers have been given wrongly as 57 and 6 respectively which are their respective house numbers instead of the correct part No. 39.
In the appeal to the High Court the question was as to whether the nomination paper of Dog Ram was improperly rejected.
On the evidence led by the parties the Single Judge found that the candidate Dog Ram and his proposer were registered as voters in the constituency and were qualified to contest the election and propose the candidate respectively.
It was further found that errors in regard to electoral roll numbers of the candidate and the proposer in the electoral roll and the nomination paper do not constitute defects of a substantial character as mentioned in the proviso to Section 33(4) of the Act.
The Single Judge accepted the evidence of P.W. 2 that when he and the candidate presented the nomination paper the Returning Officer told them that it was in order and held that the Returning Officer had thus tripped them into an error and 'observed that had he told them that there were some discrepancies in the nomination paper they would have either made the corrections then and there and would have gone more fully prepared to meet objections at the time of the scrutiny.
Accordingly the election petition was allowed and appellant 's election was declared as void.
On the ground that the nomination paper of Dog Ram was improperly rejected.
The elected candidate appealed to this Court, Allowing the Appeal, ^ HELD: l.
The Returning Officer in the instant case could not be said to have improperly rejected the nomination paper of Dog Ram.
[340G] 2.
It is not possible to say generally and in the abstract that all errors in regard to electoral roll numbers of the candidate and the proposer in the electoral rolls or nomination papers do not constitute defects of a substantial character.
They would not be defects of a substantial character only if at the time of the scrutiny the Returning Officer either by himself with the materials placed before him during the scrutiny or with the assistance of the candidate For his proposer or any other person is able to find out the correct serial number of the candidate and the proposer in the electoral roll.
If that is not the case, he would be committing a grave error by accepting the nomination paper without verifying whether the candidate is a voter in that or any other constituency of the State and whether the proposer is a voter in that constituency [334G H: 335Al 3.
No amount of evidence can be looked into upon a plea which was never put forward in the pleadings.
In the instant case, there is no allegation in the election petition that there was any assurance by the Returning Officer at the time of receipt of the nomination paper that there was nothing wrong in it.
In the absence of any such allegation in the election petition, the evidence of proposer P.W. 2, which is not even corroborated by the evidence of any other witness that he and the candidate presented the nomination paper to the Returning Officer and showed him the voters ' list and that he told them 323 then that the nomination paper was in order, is not acceptable.
In the circumstances the Single Judge was not justified in accepting the evidence of P.W. 2 and holding that the Returning Officer was guilty of tripping the candidate and the proposer by any assertion on his part into any one believing that there was nothing wrong in the nomination paper.
[335B; C E] 4.
The candidate and the proposer are always expected to go fully pre pared to meet any objection that may be raised by any candidate or even by Returning Officer himself suo moto at the time of the scrutiny and they cannot be expected to go any the less prepared merely because the Returning Officer had received the nomination paper without raising any objection.
It is at the time of scrutiny which is done in the presence of all concerned that the nomination papers come up for more detailed consideration at the hands of the Returning Officer against whom there is no estoppel in regard to the statutory duty of scrutiny.
[335F G] 5(i) The evidence of P.W. I is largely corroborated by the Returning Officer 's order.
R.W. I is an advocate and was himself a candidate but retired at a later stage.
He stated that the electoral rolls were lying on the table of the Returning Officer at the time of the scrutiny.
There is no reason for not accepting this evidence of R.W. 1.
[336D E] 5(ii) The electoral rolls were lying on the Returning Officer 's table at the time of the scrutiny and therefore, there would have been no necessity for Dog Ram and P.W. 2 to ask the Returning Officer to give them the electoral roll relating to their village for clearing his doubt.
The evidence of P.W. 2 is therefore not acceptable.
[336F] 5(iii).
The evidence of P.W.3 that the Returning Officer did not ask Dog Ram to show the names of himself and his proposer in the electoral roll is inconsistent with the allegations in the election petition as also the evidence of P.W. 2 that the Returning Officer said so.
Therefore, the evidence of P.W. 3 is not acceptable.
The evidence of R.W. 1 is accepted.
The Returning Officer found discrepancy in the names, serial number and part number mentioned in the nomination paper on the one hand and those found in the electoral roll with reference to those numbers on the other and that on account of his in ability to ascertain with the particulars made available before him whether the candidate Dog Ram and his proposer P.W. 2 were electors in the constituency he asked the candidate Dog Ram to point out the names of himself and his proposer in the electoral roll to satisfy him that they are electors in the constituency and that as he was unable to do so, he rejected the nomination paper by his order exhibit P.W. l/B. [337G H; 338A] Hira Singh Pal vs Madan Lal ; , Ram Awadesh Singh v Sumitra Devi & Ors ; and Viveka Nand Giri vs Nawal Kishore Sahi ; ; not applicable.


judgement:
Civil Appeal No. 663 of 1978.
From the Judgment and Order dt.
9.3.77 of the Allahabad High Court in Civil Misc.
Writ No. 84/77.
Dr. Anand Prakash, V.B. Saharaya and Miss A. Subhashini, for P the Appellants H. section Parihar, for the Respondent.
The judgment of the Court was delivered by MADON,J.
This Appeal by Special Leave granted by this Court is preferred against the judgment and order of a Division Bench of the Allahabad High Court allowing the writ petition filed by the Respondent under Article 226 of the Constitution of India and quashing a show cause notice dated November 12,1976 issued by the First Appellant, the Chief of the Army Staff, under Rule 14 of the Army Rules.
418 The facts which have given rise to this Appeal lie in a narrow compass.
The Respondent is a permanent commissioned officer of the Indian Army holding the substantive rank of Captain and the acting rank of Major.
In November 1975, he was posted in the Army School of Mechanical Transport, Faizabad.
As a result of certain incidents which are alleged to have taken place on November 6 and 7, 1975, the Respondent was tried by a general court martial on four charges.
It is unnecessary to reproduce the charges made against the Respondent.
The charge sheet was dated January 20, 1976, and was issued by the Commandant, Ordinance Depot, Fort Allahabad.
On January 24, 1976, the Respondent was ordered to be tried by a general court martial.
The Respondent pleaded not guilty and his trial took place at Lucknow before a general court martial consisting of one Brigadier, two Majors and two Captains Both the prosecution and the Respondent led evidence.
On March 13, 1976, the court martial announced its finding subject to confirmation, the finding being "Not guilty of all the charges".
The General Officer, Commanding Madhya Pradesh, Bihar and Orissa Area, the Third Appellant, who was the confirming authority, did not confirm the verdict and by his order dated April 3, 1976, sent back the finding for revision.
The same general court martial, therefore, re assembled on April 14, 1976, and after hearing both sides and taking into consideration the observations made by the Third Appellant in his said order dated April 3, 1976, adhered to its original view and once again announced the finding that the Respondent was ' Not guilty of all the charges".
The said finding was also expressly announced as being subject to confirmation.
The Third Appellant reserved confirmation of the finding on revision by a superior authority, namely, the General Officer, Commanding in Chief, Central Command, Lucknow, the Second Appellant, and forwarded the papers to him.
By his order dated May 25, 1976, the Second Appellant did not confirm the finding on revision of the general court martial.
The charges made against The Respondent, the finding and the non confirmation thereof were promulgated as required by Rule 71 of the Army Rules.
Thereafter the Chief of the Army Staff under Rule 14 of the Army Rules issued the impugned show cause notice dated November 12, 1976.
It was stated in the said notice that the Chief of the Army Staff had carefully considered the facts of the case as also the Respondent 's defence at the trial and being satisfied that a fresh trial by a court martial for the said offences was inexpedient, he 419 was of the opinion that the Respondent 's misconduct as disclosed in the proceedings rendered his further retention in the service undesirable.
The Respondent was called upon by the said notice to submit his explanation and defence, if any, within twenty five days of the receipt of the said notice.
Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the Respondent.
The Respondent thereupon filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which, as aforesaid, was allowed.
It was the contention of the Respondent in his writ petition that under the (Act No. 46 of 1950), and the Army rules there was an initial option either to have the concerned officer tried by a court martial or to take action against him under Rule 14 and that in his case the option having been exercised to try him by a court martial, the Chief of the Army Staff was not competent to have recourse to Rule 14 after the Respondent was acquitted both at the time of the original trial and on revision.
This contention found favour with the High Court.
The High Court held that as the Respondent had in fact been tried by a court martial which both at the time of the original trial and on revision had returned a verdict of 'not guilty, it could not be said that it was inexpedient to try the Respondent by a court martial and, therefore, the impugned notice under Rule 14 was issued without any jurisdiction.
At the hearing of the said writ petition a preliminary objection was raised by the Appellants that the said writ petition was not maintainable as being premature.
The High Court held that as the impugned notice was issued without jurisdiction, it would be exposing the Respondent to jeopardy to require him to submit his reply to the said notice and to wait until his services were terminated.
The same contentions, as were raised before the High Court, were taken before us at the hearing of this Appeal.
We will first deal with the Appellants ' preliminary objection that the Respondent 's writ petition was not maintainable as being premature.
It was the Respondent 's case that the Chief of the Army Staff had no jurisdiction to issue the impugned show cause notice after he had been again found not guilty by the court martial on revision.
The said notice expressly stated that the Chief of the Army Staff was of the opinion that the Respondent 's misconduct as disclosed in the proceedings rendered his further retention in service undesir 420 able and asked him to submit his explanation and defence, if any, to the charges made against him.
If the Respondent 's contention with respect to the jurisdiction of the Chief of the Army Staff to issue the said notice were correct, the Respondent was certainly exposed to the jeopardy of having his explanation and defence rejected and he being removed or dismissed from services.
Were the said notice issued without jurisdiction, the Respondent would have then suffered a grave, prejudicial injury by an act which was without jurisdiction.
Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court 's protection.
If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the Respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature.
This was, however, not a contention which could have been decided at the threshold until the court had come to a finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice.
Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the Respondent 's writ petition was not premature and was maintainable.
Before considering the rival contentions with respect to the validity of the impugned notice, we may mention that a learned Single Judge of the Delhi High Court has held in the case of Capt.
Kashmir Singh Shergill vs The Union of India and another (1) that the Chief of the Army Staff was competent to issue a show cause notice under Rule 14 even though the court martial had affirmed its verdict on revision.
The answer to the question whether the Chief of the Army Staff was competent to issue the impugned notice depends upon the relevant provisions of the and the Army Rules to which we now turn.
Chapter IV of the , which consists of Section 18 to 24, deals with the conditions of service of persons appointed under (1) Civil Writ No. 553 of 1974 decided on November 6, 1974 by Prakash Narain, J. 421 the Act.
Section 18 provides that every person subject to the Army .
Act shall hold office during the pleasure of the President.
Section 19 provides that subject to the provisions of the and the rules and regulations made thereunder, the Central Government may dismiss, or remove from the service, any person subject to the .
Section 22 provides that any person subject to the may be retired, released or discharged from the service by such authority and in such manner as may be prescribed by rules made under the Act.
Section 191 confers ' upon the Central Government the power to make rules for the purpose of carrying into effect the provisions of the .
Rule 14 of the Army Rules, 1954, provides as follows: "14.
Termination of service by the Central Government on account of misconduct (1) When it is proposed to terminate the service of an officer under Section 19 on account of misconduct, he shall be given an opportunity to show cause in the manner specified in sub rule (2) against such action: Provided that this sub rule shall not apply: (a) where the service is terminated on the ground of conduct which has led to his conviction by a criminal court; or (b) where the Central Government is satisfied that for reasons to be recorded in writing, it is not expedient or reasonably practicable to give to the officer an ' opportunity of showing cause.
(2) When after considering the reports of an officer 's misconduct, the Central Government or the Chief of the Army Staff is satisfied that the trial of the officer by court martial is inexpedient or impracticable, but is of the opinion that the further ' retention of the said officer in the service is undesirable the Chief of the Army Staff shall so inform the officer together with all reports adverse to him and he shall be called upon to submit, in writing, his explanation and defence: Provided that the Chief of the Army Staff may withhold from 422 disclosure any such report or portion thereof, in his opinion, its disclosure is not in the interest of the security of the State.
In the event of the explanation of the officer being considered unsatisfactory by the Chief the Army Staff, or when so directed by the Central Government, the case shall be submitted to the Central Government with the officer 's defence and the recommendation of the Chief of the Army Staffs to the termination of the officer 's service in the manner specified in sub rule (4).
(3) Where, upon the conviction of an officer by a criminal court, the Central Government or the Chief of the Army staff considers that the conduct of the officer which has led to his conviction renders his further retention in service undesirable, a certified copy of the judgment of the criminal court convicting him shall be submitted to the Central Government with the recommendation of the Chief of the Army Staff as to the termination of the officer 's n service in the manner specified in sub rule (4).
(4) When submitting a case to the Central Government under the provisions of sub rule (2) or sub rule (3), the Chief of the Army Staff shall make his recommendation whether the officer 's service should be terminated, and if so, whether the officer should be (a) dismissed from the service; or (b) removed from the service; or (c) called upon to retire; or (d) called upon to resign.
(5) The Central Government after considering the reports and the officer 's defence, if any, or the judgment of the criminal court, as the case may be, and the recommendation of the Chief of the Army Staff, may dismiss or remove the officer with or with out pension or call upon him to retire or resign, and on his refusing to do so, the officer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him.
" 423 We are not concerned in this Appeal with a case where an officer has been convicted by a criminal court or with a case where the Central Government is satisfied that it is not expedient or reasonably practicable to give to the officer an opportunity of showing cause.
A show cause notice was in fact issued to the Respondent by the Chief of the Army Staff.
Under sub rule (2) of Rule 14, the foundation of the jurisdiction of the Central B, Government or the Chief of the Army Staff to issue a show cause notice is the satisfaction of the Central Government or the Chief of the Army Staff after considering the reports of an officer 's misconduct that the trial OF the officer by a court martial is inexpedient or impracticable and the opinion formed that the further retention of the officer in the service is undesirable.
The contention before us was that in the circumstances of this case it cannot be said that the trial of the Respondent by a court martial was inexpedient or impracticable as in fact the Respondent had been tried by a court martial.
It was also submitted that on a true construction of Rule 14, the Central Government or the Chief of the Army Staff has an initial option to have the officer tried by a court martial or to take action against him under Rule 14 and if it were decided that he should be tried by a court martial, then action under Rule 14 was not permissible in case of his acquittal by the court martial.
To test the correctness of these submissions, we must examine the provisions of the relating to court martial.
Section 108 provides for four kinds of courts martial, namely.
(1) general courts martial; (2) district courts martial; (3) summary general courts martial; and (4) summary courts martial.
As the Respondent was tried by a general court martial, we are not concerned here with any other type of courts martial, Under section 109, a general court martial may be convened by the Central Government or the Chief of the Army Staff or by any officer empowered in that behalf by warrant of the Chief of the Army Staff.
Section 113 provides that a general court martial shall consist of 424 not less than five officers, each of whom has held a commission for not less than three whole years and of whom not less than four are of a rank not below that of captain.
Section 117 provides for cases in which a court martial can be dissolved.
These cases are: (1) Where after the commencement of a trial the court martial is reduced below the minimum number of officers required by the .
In such a case the dissolution of the court martial is mandatory.
(2) If, on account of the illness of the judge advocate or of the accused before the finding, it is impossible to continue the trial.
In this case also the dissolution of the court martial is mandatory.
(3) If it appears to the officer who convened a court martial that military exigencies or the necessities of discipline render it impossible or inexpedient to continue the court martial.
In this case, the dissolution of the court martial is discretionary.
Sub section (4) of section 117 expressly provides that where a court martial is dissolved, the accused may be tried again.
Section 118 ' confers upon a general court martial the power to try any person subject to the for any offence punishable thereunder and to pass any sentence authorized thereby.
Section 121 provides as follows: "121.
Prohibition of second trial.
When any person subject to this Act has been acquitted or convicted of an offence by a court martial or by a criminal court, or has been dealt with under any of the sections 80, 83, 84 and 85, he shall not be liable to be tried again for the same offence by a court martial or dealt with under the said sections.
" The Respondent was neither tried by a criminal court nor dealt with under any of the sections 80, 83, 84 and 85, most of which do not apply to an officer of his rank He was, however, tried by a general court martial which found him not guilty of any of the charges made against him.
Under section 125, where a criminal 425 court and a court martial both have jurisdiction in respect of an offence, it is in the discretion of the officer commanding the army, army crops, division or independent brigade in which the accused person is serving or such other officer as may be prescribed by the Army Rules to decide before which court the proceedings shall be instituted.
Under section 127, a person convicted or acquitted by a court martial may, with the previous sanction of the Central Government, be tried again by a criminal court for the same offence or on the same facts.
There is, however, no provision for the trial by a court martial for the same offence or on the same facts where a person has been convicted or acquitted by a criminal court.
Sections 153, 154 and 160(1) provide as follows: "153.
Finding and sentence not valid, unless confirmed.
No finding or sentence of a general, district or summary general, court martial shall be valid except so far as it may be confirmed as provided by this Act.
Power to confirm finding and sentence of general court martial.
The findings and sentences of general courts martial may be confirmed by the Central Government, or by any officer empowered in this behalf by warrant of the Central Government.
Revision of finding or sentence, (1) Any finding or sentence of a court martial which requires confirmation may be once revised by order of the confirming authority and on such revision, the court, if so directed by the Confirming authority, may take additional evidence.
In this connection it will also be relevant to set out the provisions of Rules 68, 69, 70 and 11 of the Army Rules.
These Rules provide as follows: `68.
Revision.
(1) Where the finding is sent back for revision under section 160, the Court shall reassemble in open court, 426 the revision order shall be read, and if the court is directed to take fresh evidence, such evidence shall also be taken in open court.
The court shall then deliberate on its finding in closed court.
(2) Where the finding is sent back for revision and the court does not adhere to its former finding, it shall revoke the finding and sentence, and record the new finding, and if such new finding involves a sentence, pass sentence afresh.
(3) Where the sentence alone is sent back for revision, the court shall not revise the finding.
(4) After the revision, the presiding officer shall date and y sign the decision of the court, and the proceedings, upon being signed by the judge advocate, if any, shall at once be transmitted for confirmation.
Review of court martial proceedings.
The proceedings of a general court martial shall be submitted by the judge advocate at the trial for review to the deputy or assistant judge advocate general of the command who shall then forward it to the confirming officer.
The proceedings of a district court martial shall be sent by the presiding officer or the judge advocate direct to the confirming officer who must, in all cases.
where the sentence is dismissal or above, seek advice of the deputy or assistant judge advocate general of the command before confirmation." "70.
Confirmation Upon receiving the proceedings of a general or district court martial, the confirming authority may confirm or refuse confirmation, or reserve confirmation for superior authority, and the confirmation, non confirmation, or reservation shall be entered in and form part of the proceedings.
" "71.
Promulgation The charge, finding, and sentence, and any recommendation to mercy shall, together with the confirmation or non confirmation of the proceedings, be 427 promulgated in such manner as the confirming authority may direct; and if no direction is given, according to the custom of the service.
Until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated.
" It is pertinent to note that under Section 160 the confirming authority has the power to direct a revision of the finding of a court martial only once.
There is no power in the confirming authority, if it does not agree with the finding on revision, to direct a second revision of such finding.
In the absence of any such confirmation, whether of the original finding or of the finding on revision, by reason of the provisions of section l 53 the finding is not valid.
Therefore, in the case of the Respondent, the finding of the general court martial on revision not having been confirmed was not valid.
Could he, therefore, be tried again by another court martial on the same charges ? Under Section 121, a person subject to the , who has been acquitted or convicted of an offence by a court martial or by a criminal Court, is not liable to be tried again for the same offence by a court martial.
It can well be argued that by reason of the provisions of section 153 under which no finding or sentence of a general, district or summary general court martial is valid except in so far as it is confirmed as provided by the a person cannot be said to have been acquitted or convicted by a court martial until the finding of "guilty" or "not guilty" in his case has been confirmed by the confirming authority.
There is, however, no express provision in the which empowers the holding of a fresh court martial when the finding of a court martial on revision is not confirmed.
The decisions of three High Courts may be referred to in this connection.
The first decision is that of Allahabad High Court in G.B. Singh vs Union of India and Others.
(1) That was a case under the (Act No. 45 of 1950).
In that case, the officer was found guilty by a general court martial and sentenced ,.
to be dismissed from service.
The finding and sentence was referred to the confirming authority.
The confirming authority passed an order reserving the same for confirmation by superior authority and forwarded the proceedings to the Chief Of the Air Staff.
The (1) 428 Chief of the Air staff passed an order not confirming the finding or sentence awarded by the court martial.
The finding and sentence which were not confirmed by the Chief of Air Staff were promulgated after the lapse of about ten months.
A fresh general court martial was convened to retry the office.
On enquiry the officer was informed that the findings and sentence of the general court martial had not been confirmed as it was found that the proceedings were not in order and, therefore, there was no valid order convicting or acquitting the officer.
After considering the relevant provisions of the and the Air Force Rules, 1969, which are in pari materia with the corresponding provisions of the and the Army Rules, a learned Single Judge of the Allahabad High Court held that the effect of non confirmation was that though the finding and sentence passed by the court martial existed, they could not be put into effect unless they had been confirmed under the provisions of the , and that in such a case section 120 of the (which is in pari materia with section 121 of the ) barred a second trial by a court martial.
In Major Manohar Lal vs The Union of India and Anr.
(1) the petitioner was tried by a general court martial which found him not guilty.
The General Officer Commanding in Chief held the proceedings to be null and void on the ground that one of the members of the court martial was of the rank of Captain and was thus lower in the rank to the petitioner and no certificate had been recorded by the officer convening the court martial as required by Rule 40(2) of the Army Rules, that an officer of the rank of the petitioner was not available and he, therefore, ordered a retrial.
A learned Single Judge of the Punjab and Haryana High Court held that under the and the Army Rules, a Captain was eligible to be made a member of a general court martial and the mere fact that the convening officer did not append the certificate that an officer of the rank of the petitioner was not available did not make the constitution of the general court martial invalid or the finding given by it to be without jurisdiction or the proceedings of the trial before it to be null and void.
He further held that as the petitioner had no say in the constitution of the general court martial and had suffered the trial before it, the proceedings could not have been declared null and void on a highly technical ground.
The learned Single Judge, therefore.
came to the conclusion that the second trial of the petitioner (1) 1971(1) S.L.R. 717.
429 was without jurisdiction and the sentence imposed upon him in consequence of that trial was wholly illegal.
In J.C. 13018 Subedar Surat Singh vs The Chief Engineer Projects (Beacon).
Co. 56 A.P.O. (1).A Division Bench of the Jammu and Kashmir High Court held that though every finding of a general court martial, whether of acquittal or of guilt, cannot be recorded as valid unless it is confirmed by the competent authority, the Legislature could not have reasonably intended that an officer convening a general court martial can go on dissolving such court martials and reconstituting them ad infinitum until he obtained a verdict or a finding of his own liking.
The Division Bench further held that such a position would not only be against public policy and the ancient maxim "nemo debet bis vexari pro una et eadem causa" (no man ought to be twice vexed for one and the same cause) but would also reduce the provisions of the to a mockery and give an appearance of mala fides.
According to the Jammu and Kashmir High Court, in such a case the proper course for the confirming authority would be to refer the case to its superior authority for confirmation.
This being the position, what then is the course open to the Central Government or the Chief of the Army Staff when the finding of a court martial even on revision is perverse or against the weight of evidence on record? The High Court in its judgment under appeal has also held that in such a case a fresh trial by another court martial is not permissible.
The crucial question, therefore, is whether the Central Government or the Chief of the Army Staff can have resort to Rule 14 of the Army Rules.
Though it is open to the Central Government of the Chief of the Army Staff to have recourse to that Rule in the first instance without directing trial by a court martial of the concerned officer, there is no provision in the or in Rule l 4 or any of the other rules of the Army Rules which prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14.
Can it, however, be said that in such a case a trial by a court martial is inexpedient or impracticable? The Shorter Oxford English Dictionary, Third Edition, defines the word "inexpedient" as meaning "not expedient; disadvantageous in the circumstances, unadvisable, impolitic".
The same dictionary defines "expedient ' inter alia as meaning "advantageous; fit, proper, or suitable to the circumstances o the case".
Webster 's Third New International Dictionary also (1) A.I.R. 1970 J. & K, 179.
430 defines the term "expedient" inter alia as meaning "characterized by suitability, practicality, and efficiency in achieving a particular end: fit, proper, or advantageous under the circumstances".
In the present case, the Chief of the Army Staff.
had, on the one hand, the finding of a general court martial which had not been confirmed and the Chief of the Army Staff was of the opinion that the further retention of the Respondent in the service was undesirable and, on the other hand, there were the above three High Court decisions and the point was not concluded by a definitive pronouncement of this Court.
In such circumstances, to order a fresh trial by a court martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Staff would be to take action against the Respondent under Rule 14, which he did.
The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarraned in law.
In the result, this Appeal must succeed and is accordingly allowed and the judgment of the Division Beach of the Allahabad High Court under Appeal is reversed and the order passed by it is set aside.
The writ petition filed by the Respondent in the Allahabad High Court, namely, Civil Miscellaneous Writ No. 84 of 1977, is hereby dismissed.
Before parting with this Appeal, we would like to observe that the alleged incidents in respect of which the Respondent was tried before the general court martial took place nearly ten years ago.
We, therefore, feel that the Chief of the Army Staff should take into account the conduct and behaviour of the Respondent during the intervening period and if they have been in conformity with good order and military discipline and the high traditions of the Indian Army, he may consider the desirability of proceeding further in the matter.
In the circumstances of the Case, there Will be no order as to costs throughout.

summary:
The respondent, a permanent commissioned officer of the Indian Army holding the substantive rank of captain and the acting rank of major, as a result of certain incidents which are alleged to have taken place on November 5 and 6, 1975 was ordered to be tried by a general court martial.
On March 13, 1976, the court martial announced its finding subject to confirmation, the finding being "Not guilty of all the charges.
" The General Officer Commanding, Madhya Pradesh, Bihar and Orissa Area, the third appellant, who was the confirming authority, did not confirm the verdict and by his order dated April 3, 1976, sent back the finding for revision.
The same general court martial, therefore, reassembled on April 14, 1976, and after hearing both sides and taking into consideration the observations made by the third appellant in his said order dated April 3, 1976, adhered to its original view and once again announced the finding subject to confirmation, that the respondent was "Not guilty of all the charges".
The third appellant reserved confirmation of the finding on revision by a superior authority, namely, the General Officer, Commanding in Chief, Central Command, Lucknow, the second appellant, and forwarded the papers to him.
By his order dated May 25, 1976, the second appellant did not confirm the finding on revision of the general court martial.
The charges made against the respondent, the finding and the nonconfirmation thereof were promulgated as required by Rule 71 of the Army Rules.
Thereafter, the Chief of the Army Staff under Rule 14 of the Army Rules 1954 issued the impugned show cause notice dated November 12, 1976 stating that the Chief of the Army Staff had carefully considered the facts of the case as also the respondent 's defence at the trial and being satisfied that a 416 fresh trial by a court martial for the said offences was inexpedient, he was of the opinion that the respondent 's misconduct as disclosed in the proceedings rendered his further retention in the service undesirable.
and called upon the respondent to submit his explanation and defence, if any, within twenty five days of the receipt of the said notice.
Along with the said notice copies of abstracts of evidence and the court martial proceedings were forwarded to the respondent.
The respondent, thereupon, filed in the High Court of Allahabad a writ petition under Article 226 of the Constitution of India being Civil Miscellaneous Writ No. 84 of 1976, which was allowed by a Division Bench of the said High Court.
Hence the appeal by special leave Allowing the appeal, the Court ^ HELD: 1.
Where the threat of a prejudicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before seeking the Court 's protection.
If, on the other hand, the Chief of the Army Staff had the power in law to issue the said notice, it would not be open to the respondent to approach the court under Article 226 of the Constitution at the stage of notice only and in such an event his writ petition could be said to be premature.
This was, however, not a contention which could have been decided at the threshold until the court had come to a finding with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice.
Having held that the impugned notice was issued without any jurisdiction, the High Court was right in further holding that the respondent 's writ petition was not premature and was maintainable.
[420C E] 2.
Whether the Chief of the Army Staff was competent to issue the impugned notice of show cause depends upon the relevant provisions of the and the Army Rules 1954.
Under Section 153 of the , no finding or sentence of a general, district or summary general, court martial shall be valid except so far as it may be confirmed as provided by the .
Under Section ]60 of the , the confirming authority has the power to direct a revision of the finding of a court martial only once.
There is no power in the confirming authority, if it does not agree with the finding on revision, to direct a second revision of such finding.
In the absence of any such confirmation, whether of the original finding or of the finding on revision, by reason of the provisions of Section 153 the finding is not valid.
Therefore, in the case of the respondent, the finding of the general court martial on revision not having been confirmed was not valid.
Equally, there is however, no express provision in the which empowers the holding of a fresh court martial when the finding of a court martial on revision is not confirmed.
[427C F] 3.
Though it is open to the Central Government or the Chief of the Army Staff to have recourse to Rule 14 of the first instance without directing trial by a court martial of the concerned officer, there is no provision in the or in Rule 14 or any of the other Rules of the Army Rules which 417 prohibits the Central Government or the Chief of the Army Staff from resorting in such a case to Rule 14.
[429F G] In the present case, the Chief of the Army Staff had, on the one hand, the finding of a general court martial which had not been confirmed and the Chief of the Army Staff was of the opinion that the further retention of the respondent in the service was undesirable and, on the other hand, there were three difference conflicting decisions of different High Courts on this point which point was not concluded by a definitive pronouncement of this Court.
In such circumstances, to order a fresh trial by a court martial could certainly be said to be both inexpedient and impracticable and the only expedient and practicable course, therefore, open to the Chief of the Army Staff would be to take action against the respondent under Rule 14, which he did.
The action of the Chief of the Army Staff in issuing the impugned notice was, therefore, neither without jurisdiction nor unwarranted in law.
[430B D] Capt.
Kashmir Singh Shergill vs The Union of India & Another, Civil Writ No. 553 of 1974 decided on November 6, 1974 by Prakash Narain, J., approved.
G.B. Singh vs Union of India and Others, [1973] Crl.
L.J. 485; Major Manohar Lal vs The Union of India and Anr.
, ; J.C. 13018 Subedar Surat Singh vs The Chief Engineer Projects (Beacon) C/o.56 A.P.O. AIR 1970 J. & K 179 referred to.