judgement:
Civil Misc.
Petition No. 4939 of 1983.
(Appln.
for directions) IN Writ Petition No. 4675 of 1978.
(Under Article 32 of the Constitution of India) 66 A. K. Sen, Mrs. Urmila Kapoor and Hashan Imam for the Applicant.
F.S. Nariman, M. Qamaruddin, Altaf Ahmed and Rizwan Hafiez for the Opposite side.
The Order of the Court was delivered by TULZAPURKAR, J. This Miscellaneous Petition for directions is an off shoot of this Court 's decision in the main Writ Petition No. 4675 of 1978, referred on November 3, 1981, in a dispute inter se between the members of the Shia and Sunni sects of Muslims of Varanasi, pertaining to the performance of religious rites, practices and observances by members of Shia sect on certain plots and properties situated in Mohalla Doshipura, Varanasi.
The final result in that matter was expressed by this Court in these terms: "In the result we held that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi, have established their religious rites, practices observances, ceremonies and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the plots and structures in question and respondent 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy Varanasi is directed, if action under section 144 Cr.
P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated in that behalf in this judgment.
" So far as the members of the Sunni community are concerned, in view of the ultimate decisions rendered in two earlier suits (Suit No. 424 of 1931 and Suit No. 232 of 1934) this Court found that all the rights which the Sunnis had claimed in those representative litigations stood finally negatived except for one religious practice for which some liberty was reserved to them.
To recapitulate the precise liberty reserved to them, it needs to be stated that in Suit No. 424 of 1931 there was prayer for actual removal of graves, if 67 any, found on plot No. 602/1133, that the evidence clearly showed that there was only old grave of Maulana Hakim Badruddin situated on the southern side of the said plot existing since 1307 Hazri and it was with regard to this grave that the Court had observed that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove the same and they (Sunni Muslims) were given liberty to read Fathia over that grave but what is significant is that the Court issued permanent injunction restraining the defendants and through them the Muslims of Varannsi (in fact the Sunni Muslims) from using the plot in future as burial ground.
Even the liberty to read Fathia over grave of Maulana Hakim Badruddin was to be exercised with due regard to the rights of the Maharaja.
In other words, excepting this liberty to read Fathia over the grave of Maulana Hakim Badruddin the Sunni Muslims did not have any other rights over the plot in question.
All other rights in regard to performance of religious rites, practices and observances over the other plots of structures thereon were negatived in Suit No. 232 of 1934.
It is obvious that their rights cannot be enlarged or reduced in these proceedings.
However, as regards the mosque standing on plot No. 246 is concerned this Court clarified the position that it belonged to both the communities and members of both were entitled to perform their worship by offering prayer and namaz therein.
Notwithstanding the aforesaid clear and categorical decision of this Court it appears that during the two Moharram festivals that were to be celebrated in December 1981 and October 1982, grave apprehensions of breach of peace and break down of public order were entertained by members of the Shia community and on each occasion directions were required to be given by this Court with a view to ensure that all the ceremonies at the festivals went off smoothly and peacefully and notwithstanding the directions issued by this Court on the occasion of the 1981 festival some ugly incidents of violence, stone throwing, hurling of acid bulbs bottles, etc.
did occur in respect whereof contempt proceedings were required to be taken and criminal cases are pending.
It may also be stated that on the occasion of Barawafat ceremony which was desired to be performed by the Shias on 9.1.1982, the Sunnis also wanted to have their Chaddar function and reading of Fathia on the grave and, therefore, this Court with a view to avoid any possible breach of peace had to direct that only Shias would be allowed to perform their ceremonies and the Sunnis were restrained from performing 68 Chaddar ceremony and reading of Fathia at the graves on 9.1.1982 and it was made clear that this arrangement was without prejudice to the contention of Sunnis with regard to their above function which would be decided later on.
On the occasion of 1982 Moharram festival this Court was required to pass an order on 4th October, 1982 that Chaddar function and reading of Fathia at the graves will not be permitted to be done or performed by the Sunnis on those dates on which the Shias were going to have their functions with a view to avoid clash between the two communities; by way of further clarification this Court on November 16, 1982, gave a further direction that the grave of Maulana Hakim Badruddin on plot No. 602/1133 abutting on the road would be the venue for the Sunnis to perform on that grave the Chaddar function and reading of Fathia between stated hours (8 a.m. to 1 p.m.) on 19th, 20th and 21st November, 1982 and that the Sunnis will have access to that grave only from the public road and the District Magistrate was directed to cordon off the area and make necessary security arrangements during those functions on the aforesaid dates and time at the cost of Sunnis.
We are referring to these events that have transpired since after the rendering of our main decision in Writ Petition No. 4675 of 1978 because they clearly suggest that some permanent solution of this perennial conflict between the two sects over the performance of their religious ceremonies and functions is desirable so that their religious ceremonies and functions could be performed in future without any violence, breach of peace and disturbance of public order.
With the aforesaid end in view by our order dated 4th October, 1982 we appointed a Committee of seven persons consisting of these nominees of the Shias, three nominees of the Sunnies under the Chairmanship of the Divisional Commissioner of Varanasi (present incumbent Shri section K. Mukherjee) for going into and submitting its report to us on two questions: "(i) Whether the two graves on plot No. 602/1133 could be shifted to some other convenient place; and (ii) If that is not possible whether the two graves could be cordoned off by a wall of sufficient height with an independent outlet (for entry and exit) ? It appears that the Committee held two meetings to deliberate on the two issues and the representatives of both the communities 69 expressed their views and after considering all the pros and cons the Chairman has submitted a report dated 9.12.1982 to this Court.
The report states that Sunnis vehemently opposed the idea of shifting of any grave from its present site and even with regard to the proposal of the cordoning off the two graves by a wall they were not agreeable.
The Chairman has, however, after undertaking a spot inspection of plot No. 602/1133 and the adjoining plots, opined that the suggestion to shift the two graves located on the northern side of plot No. 602/1133 to the south of the grave of Maulana Hakim Badruddin (situated in the same plot) is quite feasible as there is sufficient space in the suggested area and that such shifting of the two graves will totally separate the places of worship of Shias and Sunnies.
C.M.P. No. 4939 of 1983 has been filed by the petitioners (Shias) for issuance of directions to implement the suggestion made by the Chairman of the Committee.
The Sunnis have raised two objections to the acceptance of the suggestion of the Chairman, namely, (a) the suggestion has not only hurt the sentiments of the majority community of Sunni Muslims but is destructive of their fundamental rights and fraught with dangerous consequences and (b) the suggestion in any event is outside the jurisdiction of the Court and the scope of the proceedings before it.
In our view, there is no substance in either of the objections.
At the out set it needs to be clarified that the question whether the two graves in plot No. 602/1133 could be shifted to some other convenient place was mooted by this Court not with a view to hurt the sentiments of Sunni Muslims, who constitute a majority community in Mohalla Doshipura, Varanasi, but purely for the purpose of finding out some permanent solution to this perennial conflict between the two communities and to ensure smooth and peaceful performance of their religious ceremonies and functions in future in an atmosphere of cordiality and amity between them and a Committee was appointed to ascertain feasibility of the proposal.
Further, the proposal has now been found to be feasible by the Chairman of the Committee and the same cannot be regarded as destructive of any fundamental rights of the Sunnis as contended.
Articles 25 and 26 of the Constitution, on which strong reliance was placed by counsel for the contesting respondents representing the Sunni community in that behalf, undoubtedly guarantee (a) to all persons freedom of conscience and free profession, practice and 70 propagation of religion and (b) to every religious domination or any section thereof freedom to manage its own affairs in matters of religion but both these fundamental rights have been expressly made "subject to public order, morality and health".
In other words, the exercise of these fundamental rights is not absolute but must yield or give way to maintenance of public order and the impugned suggestion was mooted by the Court and has now been found to be feasible by the Chairman of the Committee in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of their religious ceremonies and function by members of both the sects.
Over several years in the past experience has shown that such performance of their religious ceremonies and functions was and has been invariably accompanied by ugly incidents of violence, damage or destruction to life and property putting public order in great jeopardy or the performance by members of both the sects was required to be prohibited by order under section 144 Cr.
The latter course benefits neither and obviously members of neither community could be permitted to exercise their fundamental rights under articles 25 and 26 so as to put public order in jeopardy and as such there is no question of the impugned suggestion being destructive of any fundamental rights of the Sunnis.
If the Court finds the implementation of the suggestion to be eminently fit in the interest of maintenance of public order consent of either party would be immaterial.
Moreover, in the instant case, admittedly only one old grave of Maulana Hakim Badruddin was found to be existing in plot No. 602/1133 since 1307 Hazri when Suit No. 424 of 1931 came to be decided and obviously the two graves in question have come up on the northern side of the same plot in breach and defiance of the Court 's order, and surely the Sunni Muslims cannot claim any right to retain them on the plot, much less a right to perform Chaddar function or recitation of Fatia over those graves.
However, the impugned suggestion merely seeks to shift those two graves from their present location to the Southern side of the grave of Maulana Hakim Badruddin and if taken in proper spirit it would in a sense amount to respecting the sentiments of the Sunni Muslims, for, after placing them to the grave of Maulana Hakim Badruddin, the Chaddar functions and recitation of Fathia could be undertaken by them at all the three graves instead of only at the grave of Maulana Hakim Badruddin.
Counsel for the Sunnis relied upon five 'Futwas ' issued by their religious heads (Head Muftis and Shahi Imams) from Delhi, 71 Banaras and Patna stating the position under Sheriat Law.
The common theme in all these Futwas is that under Sheriat Law respecting of graves is the religious obligation of every Muslim, that shifting of dead bodies after digging old graves in which they are lying buried is not permissible and to do so would amount to interference with their religious rights.
True, this position under Sheriat law cannot be doubted but as explained earlier the religious rights of every person and every religious denomination are subject to "public order", the maintenance whereof is paramount in the larger interest of the society.
For instance, the ecclesiastical edict or right not to disturb an interred corpse is not absolute as will be clear from the sec.
176 (3) of Criminal Procedure Code which permits its exhumation for the purpose of crime detection and this provision is applicable to all irrespective of the personal law governing the dead.
In fact, quoting a Hadit, one of the Fatwas relied upon by the contesting respondents states "unnecessary shifting of graves is also not permissible".
The edict clearly implies that it may become necessary to shift graves in certain situations and exigencies of public order would surely provide the requisite situation, especially as the fundamental rights under Articles 25 and 26 are expressly made subject to public order.
In the circumstances in directing the shifting of two graves in question for the purpose of maintaining public order which would be in the larger interest of the society, we do not think that we are doing anything irreligious.
In the circumstances the first objection is overruled.
As regards the second objection, we fail to appreciate as to how the impugned suggestion of the Chairman of the Committee is beyond the powers of this Court or outside its jurisdiction or outside the scope of the proceedings before us.
The main decision rendered by this Court and the directions issued by it have to be implemented removal of any impediment or obstruction in that behalf cannot be said to be beyond the powers or jurisdiction of this Court and since the acceptance and implementation of the suggestion of the Chairman of the committee would facilitate the carrying out of the main judgment of this Court the issuance of directions sought by the petitioners would obviously fall within the scope of the present proceedings.
C.M.P. has, therefore, to be allowed.
A plan marked Annexure 'A ' hereto and made a part of this order clearly indicates the boundary wall that has to be constructed surrounding some of the plots over which the Shias have to perform 72 their functions, ceremonies, rites, practices and observances as also the exact location of the spots where the two graves in question are to be installed after shifting them from their present site, being two spots to the south of the old grave of Maulana Hakim Badruddin with exact dimensions of open spaces surrounding the three graves that are required to be maintained and cordoned off by a wall of 12 ft.
in height On the shifting of the two graves in question to the south of the Maulana Hakim Badruddin 's give the three graves would be abutting the road on west as indicated in the plan.
We direct that the aforesaid operation of constructing the boundary wall and shifting the two graves in question and installing them at the spots indicated in the plan should be carried out by the District Magistrate of Varanasi under the direction and supervision of the Divisional Commissioner, Varanasi and in the presence of the representatives of the Shia and Sunni communities (being the members of the Committee) and the operation should be completed in all solemnity and with due regard to rituals, if any, without any delay and preferably before the advent of Moharram festival of 1983.
Co operation of members of the communities should be secured by the Divisional Commissioner and in case any one of the sects or its members refuse to co operate, the members of that sect are restrained from causing any obstruction to the aforesaid operation.
The petitioners and members of Shia community have undertaken to bear and pay the entire cost of aforesaid operation.
It is clarified that the order and directions hereby given are intended to bind the parties hereto and all members of Shia and Sunni Muslims of Varanasi but will not affect the rights, if any of third parties such as the Maharaja of his heirs of legal representatives over the plots in question.
H.S.K. Petition allowed.

summary:
While deciding a writ petition relating to the dispute regarding performance of religious rights, practices and observances by members of Shia sect on a plot of land in a mohalla, the Court permanently restrained the Sunni community of that mohalla by an injunction from interfering with the exercise of such rights of Shia community.
However, the Court found that in an earlier litigation the Sunni community had been given the liberty to read Fathia over the grave of Maulana Hakim Badruddin only found to be existing in the plot and that the other two graves had come up contrary to the Court 's injunction in the earlier litigation.
Notwithstanding the above decision the members of Shia community apprehended breach of peace and disturbance of public order and the Court had to give directions on each occasion with a view to ensure that all the ceremonies went off smoothly.
The Court, with a view to find some permanent solution to this perennial conflict between the two sects, appointed a committee to go into the question, inter alia, whether the two other graves now found in that plot could be shifted to some other convenient place.
The Chairman of the Committee opined that the suggestion to shift the two graves located on the northern side of the plot to the south of the grave of Maulana Hakim Badruddin was quite feasible as there was sufficient space in the suggested area and that such shifting of the two graves will totally separate the places of worship of Shias and Sunnis.
The petitioners (Shias) filed the present petition for issuance of directions to implement the above suggestion.
Allowing the petition, HELD: The suggestion to shift the two graves cannot be regarded as irreligious or destructive of any fundamental rights of the Sunnis.
[69G; 71E] Articles 25 and 26 of the Constitution undoubtedly guarantee (a) to all persons freedom of conscience and free profession, practice and propagation of religion and (b) to every religious denomination or any section thereof freedom to manage its own affairs in matters of religion but both these fundamental rights have been expressly made "subject to public order, morality and 65 health".
The impugned suggestion was mooted by the Court and has now been found to be feasible by the Chairman of the Committee in the larger interest of the society for the purpose of maintaining public order on every occasion of the performance of their religious ceremonies and functions by members of both the sects.
Over several years in the past experience has shown that such performance of their religious ceremonies and functions was and has been invariably accompanied by ugly incidents of violence, damage or destruction to life and property putting public order in great jeopardy or that the performance by members of both the sects was required to be prohibited by orders under section 144 Cr.
The latter course benefits neither and obviously members of neither community could be permitted to exercise their fundamental rights under articles 25 and 26 so as to put public order in jeopardy.
[69 H, 70 A D] The religious rights of every person and every religious denomination are subject to "public order", the maintenance whereof is paramount in the larger interest of the society.
The ecclesiastical edict or right not to disturb an interred corpse is not absolute as will be clear from sec.
176(3) of Criminal Procedure Code which permits its exhumation for the purpose of crime detection and this provision is applicable to all irrespective of the personal law governing the dead.
The edict clearly implies that it may become necessary to shift graves in certain situations and exigencies of public order would surely provide the requisite situation, especially as the fundamental rights under Articles 25 and 26 expressly made subject to public order.
[71 B D] The impugned suggestion merely seeks to shift those two graves from their present location to the southern side of the grave of Moulana Hakim Badruddin and if taken in proper spirit it would in a sense amount to respecting the sentiments of the Sunni Muslims, for, after placing them to the south of the grave of Maulana Hakim Baddruddin, the Chaddar functions and recitation of Fathia could be undertaken by them at all the three graves instead of only at the grave of Maulana Hakim Badruddin.
[70 F H] The main decision rendered by this Court and the directions issued by it have to be implemented and removal of any impediment or obstruction in that behalf cannot be said to be beyond the powers or jurisdiction of this Court and since the acceptance and implementation of the impugned suggestion of the Chairman of the committee would facilitate the carrying out of the main judgment of this Court the issuance of directions sought by the petitioners would obviously fall within the scope of the present proceedings.
[71 F G]


judgement:
Civil Appeal No. 2613 of 1980.
Appeal by Special leave from the Judgment and Order dated the 18th April, 1980 of the Delhi High Court in Regular Second Appeal No. 33 of 1977.
Petitioner in Person.
Anand Prakash, C.S. Vaidyanathan, Probir Chowdhry Ms. Laxmi Anand and Samir Prakash for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against a judgment of the High Court of Delhi dismissing the appellant 's second appeal.
The appellant was appointed in 1968 to the post of Research Officer of the Institute of Constitutional and Parliamentary Studies, New Delhi, as a society registered under the , and was later designated as Assistant Director.
Subsequently, he was given additional charge of the Library of the Institute.
In March, 1974 the appellant submitted a bill of Rs. 350 to the Institute claiming reimbursement of medical expenses incurred by him in the delivery of a child to his wife during the previous month.
The Institute, however, framed a charge on November 5, 1974 against the petitioner, alleging that he was attempting to draw the sum by tendering a false bill.
A member of the Executive Council of the Institute was appointed to enquire into the charge and the appellant participated in the enquiry proceedings.
During the pendency of the proceedings the appellant appealed to the Executive Council of the Institute to change the Enquiry officer but, it is alleged by the appellant, while the appeal was pending consideration 155 the appellant received a Memorandum dated July 17/18, 1975 from the Executive Chairman of the Institute placing the appellant under suspension.
The Enquiry officer completed his report on August 9, 1975 holding that the charge of presenting a false bill was proved against the appellant.
On October 15/16, 1975 a second charge was framed against the appellant alleging that he was guilty of disobeying an officer order requiring him to hand over charge of the Library.
The appellant was also served with a notice of the same date, along with a copy of the enquiry report, requiring him to show cause why he should not be dismissed from service.
The appellant then filed a suit for declaration and injunction in the Court of the learned Subordinate Judge, Delhi on November 15, 1975 and obtained an ex parte order restraining the Institute and its officers from dismissing him.
When the matter came on for final disposal on August 24, 1976 the learned Subordinate Judge dismissed the suit without trial on the preliminary point that it was not maintainable.
He expressed the view that the appellant 's remedy lay in damages and not in a suit for declaration.
The appellant appealed, and during the pendency of the appeal the learned Senior Subordinate Judge passed an order dated August 28, 1976 declining to grant an ex parte stay order.
On September 3, 1976 the Institute filed a reply stating that the stay application had become infructuous as the appellant had been dismissed from service.
The appeal filed by the appellant was dismissed by the learned Senior Subordinate Judge on January 22, 1977, who endorsed the view of the trial court that the remedy of the appellant lay in damages instead of by a suit for declaration.
The appellant filed a second appeal in the High Court of Delhi.
During the pendency of the appeal he moved an application for amendment of the plaint.
On April 18, 1980 the High Court rejected the amendment application and also dismissed the second appeal.
And now this appeal.
The appellant attempted to place his case before us on its merits, but strong objection was taken by the respondents to the maintainability of the appeal on the ground that the order dismissing the appellant had not been challenged by him, that the order had become final and that the continued existence of the order constituted an impediment to the consideration of the reliefs claimed in the suit.
The appellant strenuously urged that the appeal continues to survive, and he attempted to establish that among the reliefs claimed in his amendment application filed in the High Court he had included a relief for declaring the order of dismissal invalid and, he said, the amendment had been wrongly refused.
Shortly before 156 concluding his submissions in this Court, he filed an application in this appeal praying for amendment of the plaint by the inclusion of such relief.
We have examined the record of the case and we find that at no stage upto the dismissal of his second appeal did the appellant attempt to include a relief in his plaint against the order of dismissal.
On the contrary, the reliefs sought to be included through the amendment application filed in the High Court proceeded on the assumption that the appellant was still continuing in service, for we find that one of the reliefs specifically mentioned in the amendment application was: "(c) "A decree for perpetual injuction he granted to the plaintiff against the defendants, restraining the defendants from dismissing the plaintiff from the post of Assistant Director and Incharge of the Library of the Institute and taking any action on the basis of the enquiry report or show cause notice and holding any second enquiry on the basis of the second charge sheet or taking any action whatsoever in these matters." Plainly, once an order of dismissal was passed against him, a different cause of action arose and it was not possible for the appellant to maintain the proceeding on the original cause of action.
The original reliefs claimed in the suit consisted of a decree of declaration that the proceedings taken against the appellant upto the framing of the second charge on October 15/16, 1975 were invalid, and a decree for perpetual injunction restraining the respondents from dismissing the appellant.
The appellant contended that the order of dismissal had not been served on him and, therefore, no occasion had arisen for challenging the order.
It was alleged that an unsigned copy of an order of dismissal had been received by him and nothing more.
We cannot accept the contention, because we find ample evidence on the record indicating that the appellant treated the order served on him as an effective order and that otherwise also he was aware that he had been dismissed.
Indeed, he took proceedings in court charging the respondents with contempt of court for passing an order of dismissal while his suit was still pending.
As regards the application now filed before us praying for leave to amend the plaint, we are constrained to reject it inasmuch 157 as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed.
No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint.
It has also not been established by the appellant that if a suit is filed now against the order of dismissal it would be within the period of limitation.
Upon the aforesaid considerations, we are of opinion that the present appeal is liable to be dismissed as not maintainable.
We find it unnecessary to enter into the question whether the charge framed against the appellant, on the basis of which he has been dismissed, stands proved.
We express no opinion in the matter.
While concluding, we may record that the appellant claims arrears of pay from the Institute.
We believe it would be just and proper that the Institute should examine the claim of the appellant, and if it finds that any amount is due to the appellant it should make payment thereof with all reasonable expedition.
It is hoped that in this regard the Institute will not seek the advantage of any technical objection, including the period of limitation.
In the result, the appeal is dismissed as not maintainable.
There is no order as to costs.
H.S.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant who was found guilty of a charge in an enquiry was served with a notice to show cause why he should not be dismissed from service.
A second charge was also framed against the appellant.
The appellant filed a suit for declaration and an injunction and obtained an exparte order restraining the respondent and its officers from dismissing him.
The Subordinate Judge dismissed the suit as not maintainable.
The appellant filed an appeal before the Senior Subordinate Judge.
In reply to the stay application it was stated that the stay application had become infructuous as the appellant had been dismissed from service.
The Senior Subordinate Judge dismissed the appeal.
The appellant filed a second appeal in the High Court and during the pendency moved an application for amendment of the plaint.
The High Court rejected the amendment application and dismissed the appeal.
In this appeal the appellant urged that among the reliefs claimed in his amendment application filed in the High Court he had included the relief for declaring the order of dismissal invalid.
The appellant filed an application praying for amendment of the plaint by the inclusion of such a relief.
Dismissing the appeal, HELD: The appeal is not maintainable.
Once an order of dismissal was passed against him, a different cause of action arose and it was not possible for the appellant to maintain the proceedings on the original cause of action.
The original reliefs claimed in the suit consisted of a decree of declaration that the proceedings taken against the appellant upto the framing of the second charge on October 15/16, 1975 were invalid, and a decree for perpetual injunction restraining the respondents from dismissing the appellant.
At no stage upto the dismissal of his second appeal did the appellant attempt to include a relief in his plaint against the order of dismissal.
On the contrary, the reliefs sought to be included through the amendment application filed in the High Court proceeded on the assumption that the appellant was still continuing in service.
[156 E F; B C] 154 The Court is constrained to reject the application praying for leave to amend the plaint inasmuch as it is for the first time throughout this protracted proceeding commencing with the institution of the suit in 1975 that the appellant is now seeking to include the relief although he had come to know several years ago that he had been dismissed.
No circumstance has been shown explaining why the appellant should be permitted at this late stage to amend the plaint.
It has also not been established by the appellant that if a suit is a filed now against the order of dismissal it would be within the period of limitation.
[156;H 157 A B]


judgement:
Civil Appeal No. 1737 (NCE) of 1981.
106 Appeal by Special leave from the Judgment and Order dated the 29th June, 1981 of the Madras High Court in Election Petition No. 3 of 1980.
R.K. Garg, V.J. Francis for the Appellant.
Dr. Y.S. Chitale, K. Rajendra Choudhary and section Srinivasan for Respondents.
A.V. Rangam and Mrs, Sarla Chandra for Respondent No. 5.
The following Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
At the conclusion of the hearing of this appeal arising out of an election petition filed under Sections 80 to 83, 98, 100(1) (d) (iii) and (iv) and Section 101 of the Representation of People Act, 1951 we passed the following order announcing the decision arrived at by us: "The appeal is dismissed with no order as to costs.
All interim orders passed by this Court are vacated.
Reasons will follow.
" We now proceed to state the reasons in support of the aforesaid conclusion.
In the General Elections to the Tamil Nadu Assembly held in May 1980, the Appellant had contested for the Ilayangudi Assembly Constituency seat, and the 1st Respondent was a rival candidate sponsored by the Communist Party of India.
Respondents 2, 3 and 4 had also stood for election in the same constituency as independent candidates.
The polling took place on the 28th of May 1980.
The counting of votes was commenced at 10.000 a.m. on the 1st of June 1980 and at 5.00 p.m. after the postal ballot votes were also counted, the result of the election was announced by the Returning Officer, declaring that the appellant was duly elected on the ground that he had secured the highest number of votes among the contesting candidates.
According to the results of the counting as announced, the appellant had secured 34, 437 votes and the 1st respondent had polled 34, 381 votes.
The other three candidates secured only a very small number of votes and had forfeited their deposits.
Thus, it was only by a 107 narrow margin of 56 votes that the appellant was declared to have won the election.
The validity of the election was challenged by the 1st respondent by filing the election petition before the High Court of Madras praying for an order for the scrutiny and recounting of all the ballot papers cast in the election to the Ilayangudi Assembly Constituency held on 28.5.80 and for a declaration that the election of the appellant to that constituency was void and that the 1st respondent had been duly elected in respect of that constituency.
The main grounds urged in support of the prayer for setting aside the election of the appellant were three fold, viz., (1) improper rejection by the Returning Officer of valid votes cast in favour of the 1st respondent; (2) improper reception of invalid votes cast in favour of the appellant; and (3) improper treatment of valid votes cast in favour of the first respondent and the 3rd respondent as votes cast in favour of the appellant.
A further ground was also taken in the petition that the procedure adopted by the Returning Officer in the counting of votes and the declaration of the result of the election was not in accordance with the provisions of the Representation of the People Act (hereinafter called the Act), the rules and the instructions issued in that regard.
After a detailed discussion of the evidence adduced in the case the learned single Judge of the High Court, who tried the election petition, found that there was no basis for the allegation made in the petition that the procedure adopted by the Returning Officer in the counting of votes was not in accordance with the relevant provisions of the Act, the rules and the instructions.
It was further found by the learned Judge that the averment made in the petition that valid votes cast in favour of the 1st respondent and the 3rd respondent had been improperly treated as votes polled in favour of the appellant was devoid of factual foundation.
However, on the issue relating to the question whether there had been improper rejection of valid votes cast in favour of the 1st respondent herein (petitioner in the election petition), the learned Judge found that it was clearly established by the evidence that the Returning Officer had erroneously and illegally rejected as invalid ballot papers in which the marking had been done either on the demarcation line at the bottom of the 1st respondent 's column the first respondent 's name was printed on the ballot paper as the last name immediately beneath the said name was the demarcation line at the bottom or partially on the demarcation 108 line and partially in the column of the 1st respondent.
The difference in votes between the appellant and the 1st respondent being only 56, the learned Judge held that there should be a rescrutiny of the rejected votes and a recount in the light of such scrutiny should be undertaken.
The total number of votes rejected on different counts was 751.
The 1st respondent deposed in his evidence that there were as many as about 300 votes cast in his favour in which the marking was partially on the demarcation line and partially in the column where his name was printed and they had all been rejected.
The Returning Officer, in his testimony, as RW 2, admitted that he had treated such ballot papers as invalid but asserted that the total number of ballot papers rejected on the said ground was only 127.
The learned single Judge was of opinion that even if the version of RW 2 regarding the number of ballot papers rejected on the aforesaid ground was to be accepted as correct, the Returning Officer had committed a manifest illegality while counting the votes and the declaration of the result made on the basis of such defective counting had to set aside.
Accordingly, the High Court directed a re scrutiny and a recount of all the rejected votes to be carried out in the premises of the High Court.
The learned Judge appointed one of Assistant Registrars of the High Court was Presiding Officer to supervise the recounting.
The Chief Electoral Officer was directed to cause the production of all the rejected votes in respect of the Ilayangudi Assembly constituency at the election held on 28.5.1980.
A direction was also issued to the Returning Officer 5th respondent to render all necessary assistance to enable the re scrutiny and recounting to be properly carried out by the Assistant Registrar as presiding officer.
It is against the said decision of the High Court that this appeal by special leave has been preferred.
The Returning Officer, in the testimony given by him as RW2, has admitted in categorical terms that he had rejected as invalid ballot papers where the marking was partially in the column of the candidate and partially in the shaded area and also those where the marking was partially in the candidate 's column and partially on the dividing line in the bottom.
His explanation was that in doing so he had strictly followed the instructions constrained in the booklet P3, entitled "Instructions to counting staff" issued in Tamil language by the Chief Electoral Officer of Tamil Nadu in connection with the elections to the Tamil Nadu Legislative Assembly, 1980.
Rule 39(2) (b) of the Conduct of Election Rules 1961 requires an elector to make a mark on the ballot paper with the instrument 109 supplied for the purpose "on or near the symbol of the candidate for whom he intends to vote".
Rule 56(2) directs the Returning Officer to reject a ballot paper "(a). . . . or (b) if it bears no mark at all to indicate the vote, or it bears a mark else where than on or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose, or (c). . . . , or (d) if the mark indicating the vote thereon is placed in such a manner as to make it doubtful to which candidate the vote has been given.
" The essence of the principle incorporated in the rule is that so long as the ballot paper bears a mark made with the instrument supplied for the purpose, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given.
In this context it is necessary to remember that nearly 90% of the electorate in this country consists of illiterate and uneducated rural folk totally unacquainted with the intricacies of the rules and technicalities of procedure pertaining to elections.
Even if the best of endeavour is made to explain to them such complicated rules and procedures they may not be capable of grasping and fully understanding all the implications and actually carrying them into effect while exercising their franchise.
If the right conferred on the people to choose their representatives to the State Legislatures and the Parliament through the process of free and fair elections is to be meaningful the will of the illiterate and unsophisticated voter expressed through a marking on the ballot paper which though not strictly inside that column of the particular candidate is clearly indicative of the identity of the candidate for whom the vote is cast has to be respected and given its full effect.
It is gratifying to note that the Election Commission has manifested due awareness of this stark reality while issuing instructions to the Returning Officers regarding the principles to be adopted for rejection of ballot papers in the "Handbook for Returning Officers" published by the Commission in 1982.
At page 90 of the book, the Returning Officers have been instructed to reject a ballot paper only (i) when there is no mark at all on the front or the mark is made otherwise than with the instrument supplied for the purpose; (ii) when the mark is in blank area, that is to say, at the back or entirely in the shaded area; or 110 (iii)when there are marks against two or more candidates; (iv) When there is any writing or mark by which the voter can be identified; or (v) when the ballot paper is mutilated beyond recognition; or (vi) when the ballot paper is not genuine or it is spurious.
The Election Commission has also issued a "Handbook for candidates" for election to the House of the People, Legislative Assemblies of States and Union Territories, etc.
At page 78 of the book, it is specifically stated that the Returning Officer will not reject any ballot paper simply because the mark is only partially within the column of one candidate and the rest of the mark is in the blank area.
It has also clarified that a ballot paper shall not be rejected merely on the ground that the mark indicating and vote is indistinct or made more than once, if the intention that the vote is for a particular candidate clearly appears from the way the paper is marked.
The matter has been further clarified in a pamphlet issued by the Election Commission of India in 1982 entitled" A Pamphlet showing illustrative cases of valid and invalid postal and ordinary ballot papers".
The illustration at page 17 of the pamphlet depicts a case where the mark affixed on the ballot paper is partially in the column of the candidate No. 1, the rest of it being in the shaded area and it is clearly directed that in such cases the ballot paper should be treated as containing a valid vote in favour of Candidate No. 1.
The Chief Electoral Officer of Tamil Nadu had issued a similar pamphlet containing instructions in Tamil to the counting staff purporting to be in terms identical with those contained in the Handbook and the pamphlet issued by the Election Commission of India, exhibit
P3 marked in this case is the pamphlet so issued in Tamil by the Chief Officer, Tamil Nadu.
exhibit
P3 contains illustrative cases of valid and invalid postal and ordinary ballot papers and in publishing it, the obvious intention was to have the illustrations on indentical lines as those found in corresponding pamphlet issued by the Election Commission of India.
Unfortunately, however, in the illustration of invalid ballot papers appearing at page 40 of the Book (Ex.P3), the major portion of the marking is in the shaded area and a small portion of the mark is in the column of the candidate.
Apparently what was intended to be printed was an illustration 111 showing a a ballot paper in which the whole of the marking was in the shaded area only without any portion of it being in the column of the candidate.
The illustration as printed in the pamphlet obviously conveys the erroneous impression that a ballot paper where the marking is partly in the column of the candidate and partly in the shaded area is to be rejected by the Returning Officer as invalid.
This is directly contrary to the intendment of the relevant rule and also the express wording of the instructions issued by the Election Commission.
In the case before us, the Returning officer was obviously misled by the aforesaid illustration contained in the pamphlet, exhibit
P.3 and that was the sole reason why he was rejected as invalid the ballot papers where the marking was contained partly in the column of the first respondent and partly on the demarcating line or shaded area.
Had the Returning Officer taken the trouble to study the instructions contained the "Handbook for the candidates" and the "Handbook for the Returning Officers" it should have been apparent to him that the illustration aforementioned contained in exhibit P3 did not correctly reflect the position laid down in the rules and instructions.
It follows that the High Court was perfectly right in holding that the counting and declaration of the results in the instant case were vitiated by serious illegality and in directing a re scrutiny and recounting of all the rejected votes.
The appeal is, therefore, devoid of merits.
Before we part with the case, we consider it necessary to observe that in order to avoid a recurrence of such unfortunate instances illegal rejection of votes on the basis of the misleading illustration contained in the pamphlet, exhibit P3, it is essential that immediate action should be taken by the Chief Electoral Officer, Tamil Nadu, to withdraw the said pamphlet from circulation and to substitute it by issuing a fresh pamphlet containing illustration correctly reflecting the legal position under relevant rules and instructions relating to the scrutiny, acceptance of rejection of ballot papers.
The Registrar will forward copies of this judgment to the Election Commission of India and to the Chief Electoral Officer, Tamil Nadu, for necessary early action being taken in the light of our foregoing observations, S.R. Appeal dismissed.

summary:
In the General Elections to the Tamil Nadu Assembly held in May 1980, the appellant contested for the llayangudi Assembly Constituency seat and was duly elected as he polled 34437 votes.
The first respondent who had polled 34381 votes and missed by a narrow margin of 56 votes filed an election petition before the High Court of Madras on three grounds viz., (a) improper rejection by the Returning Officer of valid votes cast in favour of the respondent; (b) improper reception of invalid votes cast in favour of the appellant and (c) improper treatment of valid votes cast in favour of the first respondent and the 3rd respondent as votes cast in favour of the appellant.
The High Court accepted the petition on its finding on the first ground in favour of the Ist respondent and ordered rescrutiny of the votes rejected as invalid.
Hence the appeal by special leave.
Dismissing the appeal, the Court HELD: 1:1 The pamphlet issued in Tamil titled "A pamphlet showing illustrative cases of valid and invalid postal and ordinary ballot papers "(Ex P3) issued by the chief Electoral Officer, Tamil Nadu is misleading and therefore should be withdrawn.
[111 D] 1:2.
In the illustration of invalid papers appearing at page 40 of the Book (Ex P3), the major portion of the marking is in the shaded area and a small portion of the mark is in the column of the candidate.
Apparently what was intended to be printed was an illustration showing a ballot paper in which the whole of the marking was in the shaded area only without any portion of it being in the column of the candidate.
The illustration as printed in the pamphlet obviously conveys the erroneous impression that a ballot paper where the marking is partly in the column of the candidate and partly in the shaded area is to be rejected by the Returning Officer as invalid.
This is 105 directly contrary to the intendment of the relevant rule and also the express wording of the instructions issued by the Election Commission.
[110 H; 111 A B] In the instant case the Returning Officer was obviously misled by the aforesaid illustration contained in the pamphlet, exhibit P 3 and that was the sole reason why he rejected as invalid the ballot papers where the marking was contained partly in the column of the first respondent and partly on the demarcating line or shaded area.
Had the Returning Officer taken the trouble to study the instructions contained in the "Handbook for the Returning Officer" it should have been apparent to him that the illustration aforementioned contained in exhibit P3 did not correctly reflect the position laid down in the rules and instructions.
[111 C D] 2:1 The essence of the principle in Rule 39(2) (b) of the Conduct Rules, 1961, is that so long as the ballot paper bears a mark made with the instrument supplied for the purpose, the ballot paper shall not be rejected as invalid, if it is reasonably possible to gather a definite indication from the marking as to the identity of the candidate in favour of whom the vote had been given.
[109 C D] 2:2.
Nearly 90% of the electorate in this country consists of illiterate and uneducated rural folk totally unacquainted with the intricacies of the rules and technicalities of procedure pertaining to elections.
Even if the best of endeavour is made to explain to them such complicated rules and procedures they may not be capable of grasping and fully understanding all the implications and actually carrying them into effect while exercising their franchise.
If the right conferred on the people to choose their representatives to the State Legislatures and the Parliament through the process of free and fair elections is to be meaningful the will of the illiterate and unsophisticated voter expressed through a marking on the ballot paper which though not strictly inside the column of the particular candidate is clearly indicative of the identity of the candidate for whom the vote is cast has to be respected and given its full effect.
The Election Commission has manifested due awareness of this stark reality while issuing instructions to the Returning Officers regarding the principles to be adopted for rejection of ballot papers in the "Handbook for Returning Officers" published by the Commission in 1982, and also a "Handbook for candidates ' for election to the House of People, Legislative Assemblies of States and Union Territories etc.
[109 D G] Observation: In order to avoid a recurrence of such unfortunate instances of illegal rejection of votes on the basis of misleading illustration contained in the pamphlet, exhibit P3, it is essential that immediate action should be taken by the Chief Electoral Officer, Tamil Nadu to withdraw the said pamphlet containing illustrations correctly reflecting the legal position under relevant rules and instructions relating to the scrutiny acceptance or rejection or ballot papers.
[111 F G]