judgement:
Appeal No. 154 of 1953.
Appeal by Special Leave against the Judgment and Decree dated the 8th January, 1953, of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 arising out of Suit No. 235 of 1949 in the said High Court.
M. C. Setalvad, Attorney General for India, and C. K. Daphtary, Solicitor General for India, (Porus A. Mehta, with them) for the appellants.
N.A. Palkhivala and section P. Varma for respondent No. 1. 1954.
May 14.
The Judgment of the Court was delivered by BHAGWATI J.
207 BHAGWATI J.
This appeal by special leave from a judgment of the High Court of Judicature at Bombay in Appeal No. 117 of 1952 raises a short point as to the construction of clause 3 of the Requisitioned.
Land (Continuance of Powers) Ordinance, 1946.
The suit out of which this appeal arises was commenced by the first respondent against the appellants and the second respondent for delivery of vacant and peaceful possession of the three shops situated 'on the ground floor of the premises known as "Irani Manzil.
" The first respondent was the owner of the said immovable property which had been requisitioned on the 15th April, 1943, by the Collector of Bombay in exercise of the powers conferred upon him by, rule 75 A(1) of the Defence of India Rules read with the Notification of the Government, Defence Co ordination Department, No. 1336/OR/1/42 dated the 15th April, 1942.
The order of requisition was in the following terms: "Order No. M.S.C. 467/H Whereas it is necessary for securing the public safety and the efficient prosecution of the war to requisition the property specified in the schedule hereto appended. . 1, M.A. Faruqui, the Collector of Bombay, do hereby requisition the said property and direct that possession of the said property be delivered forthwith to the Food Controller, Bombay, subject to the following conditions: (1)The property shall be continued in requisition during the period of the present war and six 'months thereafter, or for such shorter period as may be specified by the Food Controller, Bombay. . . " The said premises were used for the purpose of housing the Government Grain Shop No. 176.
By a letter dated the 30th July, 1946/17th August, 1946, the Controller of Government Grain Shops, Bombay, wrote to the first respondent that as the validity, of the requisitioning order was to expire on the 30th September, 1946, the first respondent should allow the Department to remain as her tenants in respect of the premises.
The first respondent replied by her advocate 's letter dated the 27th August, 1946, 208 offering the tenancy to the Department on certain terms.
These terms were not accepted but the occupation of the premises continued even after the 30th September, 1946, and the first respondent complained about such occupation after the period of requisition of the said shops had come to anend and also complained that it was contemplated to transfer the said shops to a private party or concern without any reference to her in the matter.
By her advocate 's letter dated the 29th August, 1947, she gave to the Collector of Bombay a notice to vacate the said shops giving him two clear calendar months ' time and asking him to deliver over to her peaceful and vacant possession of the said shops.
The Controller of Government Grain Shops, Bombay, wrote to the first respondent on the 1st October, 1947, that the second respondent was being handed over the Government Grain Shop No. 176 and that she should give her consent to the electric connection to be carried out in the said shops by the second respondent.
The first respondent refused to giver her consent and protested against the contemplated action.
The Collector, of Bombay by his letter dated the 15th January, 1948, intimated to the first respondent that the requisitioning of the said shops was continued after the 30th September, 1946, by Act XVII of 1947 and as possession of the said shops had been handed over to the second respondent vacant possession of the same could not be given to the first respondent.
Further correspondence ensued between the first respondent 's attorneys and the Collector of Bombay in the course of which the Collector of Bombay admitted that the said shops had been sublet to the second respondent but contended that the maintenance of essential supplies was the purpose for which the premises in question were requisitioned and that as the second respondent continued to serve the same purpose the first respondent was not entitled to peaceful and vacant possession of the premises.
The first respondent therefore filed a suit on the original side of the High Court.
of Judicature at Bombay being Suit No. 235 of 1949 claiming vacant and peaceful possession 209 of the premises as also compensation for wrongful use and occupation thereof till delivery of possession was given over to her.
The appellants were impleaded as defendants Nos. 1 and 2 in the said suit and the second respondent was impleaded as the third defendant.
The suit was contested by the appellants.
The second respondent did not file any written statement nor did he contest the suit.
The first respondent contended that, the requisitioning order had expired, that the property was no longer under requisition and therefore the possession by the Government was wrongful.
She next contended that the order was made for a specific purpose and as that purpose no longer obtained the order was no longer operative.
She further contended that after August, 1947, the user of the property was not by the appropriate Government, viz., the Dominion of India, but was by the State Government.
She also contended that the requisitioning order had ceased to be operative by reason of Act IX of 1951.
The trial Judge, Mr. Justice Coyajee, upheld all these contentions of the first respondent and decreed the suit.
The appellants preferred an appeal against that decision and the Court of Appeal confirmed the decree passed by the trial.
Court on the short point as to whether clause 3 of Ordinance No. XIX of 1946 had the effect of continuing the requisitioning order.
It affirmed the conclusion of the trial Court that there was no further extension of the duration of the requisitioning order by the provisions of clause 3 of the Ordinance and declined to go into the other questions which had been mooted before the trial Court and which had been decided by the trial Court in favour of the first respondent.
The appellants not being satisfied with that judgment applied for leave to appeal to the Supreme Court, but the High Court rejected that application.
The appellants thereupon applied for and obtained special leave under article 136 of the Constitution.
It is common ground that the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder 27 210 were to expire on the 30th September, 1946.
Various immoveable properties had been requisitioned in exercise of the powers conferred by sub rule I of rule 75A of Defence of India Rules and all these requisitioning orders would have come to an end and the immoveable properties released from requisition on the, expiration of the Defence of India Act and the rules made thereunder.
These requisitions had to be continued and an emergency arose which made it necessary to provide for the continuation of certain powers theretofore exercisable under the said Act and the said rules and the Governor General in exercise of the powers conferred by section 72 of the Government of India Act promulgated on the 26th September, 1946, an Ordinance being Ordinance No. XIX of 1946, the relevant provisions of which may be set out hereunder "ORDINANCE NO.
XIX OF 1946.
An Ordinance to provide for the continuance of certain emergency powers in relation to requisitioned land. .
Whereas an emergency has arisen which makes it necessary to provide, in relation to land which, when the Defence of India Act, 1939 (XXXV of 1939), expires, is subject to any requisition effected under rules made under that Act, for the continuance of ' certain powers theretofore exercisable under the said Act or the said rules. . . the Governor General is pleased to make and promulgate the following Ordinance:. . . . 2. DEFINITIONS. . . . (3) " Requisitioned land " means immoveable property which, when the Defence of India Act, 1939 (XXXV of 1939), expires is subject to any requisition effected under the rules made under this Act. . Seen.
Continuance of requisitions Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV.
of 1939), and the rules made thereunder, all requisitioned lands shall continue to be subject to requisition until the expiry of this Ordinance and the appropriate Government may use or deal with any requisitioned land in such manner a& may appear to it to be expedient," 211 It is clear from the preamble as also clause 3 of the Ordinance that the occasion for the enactment of the Ordinance was the impending expiration of the Defence of India Act, 1939, and the rules made thereunder.
All the requisition orders which had been made under the Act and the rules would have ceased to be operative and come to an end with the expiration of the Act and the rules and the immovable properties which had been requisitioned thereunder would have been released from such requisition.
It was in view of that emergency that the Ordinance came to be promulgated and the obvious object of the enactment was to provide for the continuance of the powers exercisable under the Act and the rules and to continue the requisitions of immoveable properties which had been made thereunder.
It was therefore argued that those requisition orders which would cease to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be continued by virtue of clause 3 of the Ordinance and clause 3 would accordingly cover only such requisition orders as would have.
ceased to be operative and come to an end with the expiration of the Act and the rules and not those orders which by reason of their inherent weakness such as the limitation of the period of duration expire ipso facto on the date of the expiration of the Act and the rules.
The latter category of orders would have ceased to be operative and come to an end by reason of the limitation placed on the period of duration within the terms of the orders themselves and their expiration would not have depended upon the expiration of the Act and the rules and were therefore not touched by clause 3 of the Ordinance.
That this was the true construction of clause 3 of the Ordinance was further sought to be supported by the non obstante clause appearing therein, viz., "Notwithstanding the expiration of the Defence of India Act, 1939 (XXXV of 1939), and the rules made thereunder.
" The non obstante clause was invoked in support of the submission that those orders which would have ceased to be operative and come to an end with the expiration of the Act and the rules were the only orders which were intended to be, continued under clause 3 of the Ordinance.
212 There is considerable force in the argument and it found favour with the trial Court as well as the Court of appeal.
It was recognised that but for the non obstante clause the plain wording of the Ordinance was capable of covering the order in dispute.
The preamble in so far as it could be drawn upon for the purpose showed that the Ordinance was being enacted to provide for the continuation of certain powers in relation to land which was subject to any requisition effected under the Act and the rules.
The definition of requisitioned lands contained in clause 2(3) also covered immoveable property which when the Defence of India Act, 1939, expired was subject to any requisition effected under the Act and the rules.
Clause 3 of the Ordinance covered all requisitioned lands which having regard to the definition above mentioned covered immovable properties which when the Defence of India Act, 1939, expired were subject to any requisition effected under the Act and the rules and such requisitioned lands were to continue to be subject to requisition until the expiry of the Ordinance.
On a plain and grammatical construction of these provisions it was obvious that once you had an immovable property which when the Defence of India Act expired, that is on the 30th September, 1946, was subject to any requisition effected under the Act and the rules, that immovable property continued to be subject to requisition until the expiry of the Ordinance, no matter whether the requisition order to which the immovable property was subject was of a limited duration or an indefinite duration.
The only test was whether the immovable property in question was on the 30th September, 1946, subject to any requisition effected under the Act and the rules.
This construction was sought to be negatived by having resort to the non obstante clause which, it was submitted, restricted the operation of clause 3 of the Ordinance only to those cases where the requisition order would have ceased to be operative or come to an end merely by reason of the expiration of the Act and the rules.
If there was in existence on the 30th September, 1946, any requisition order which would have ceased to be operative or come to an end by reason of the fact that it was limited in duration and 213 was to expire on the 30th September, 1946, the non obstante clause saved that from the operation of clause 3 of the Ordinance and such requisition order could not continue in operation until the expiry of the Ordinance as therein provided.
Such orders could not have been in the contemplation of the legislative authority because they would cease to be operative and come to an end by reason of the inherent weakness of the orders and not by reason of the fact that the Act and the rules were to expire on the 30th September, 1946, and it would not be at all necessary to make any provision for the continuance of such requisitions, because they could never have been intended to be continued.
While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non obstante clause and the operative part of the section, the non obstante clause need not necessarily and always be co extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment.
If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof, a non obstante clause cannot out down that construction and restrict the scope of its operation.
In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the Legislature by way of abundant 'caution and not by way of limiting the ambit and scope of the operative part of the enactment.
Whatever may have been the presumed or the expressed intention of the legislating authority when enacting the Ordinance No. XIX of 1946, the words of clause 3 read along with the definition of requisitioned land contained in clause 2(3) of the Ordinance are quite clear and it would not be within the province of the Courts to speculate as to what was intended to be covered by clause 3 of the Ordinance when the only interpretation which could be put upon the terms thereof is that all requisitioned lands, that is, all immoveable properties which when the Defence of India Act, 1939, expired were subject to any requisition effected under the Act and the rules were to continue 214 to be subject to requisition until the expiry of the Ordinance.
No doubt measures which affect the liberty of the subject and his rights to property have got to be strictly construed.
But in spite of such strict construc tion to be put upon the provisions of this Ordinance one cannot get away from the fact that the express provisions of clause 3 of the Ordinance, covered all cases of immoveable properties which on the 30th September, 1946, were subject to any requisition effected under the Act and the rules, whether the requisition was effected for a limited duration or for an indefinite period.
Even those requisition orders, which by accidentor design were to expire on the 30th Septem ber, 1946, would come to an end not only because the fixed term expired but also because the Act and the Rules expired on that date and were therefore covered by_ clause 3 read along with the definition in clause 2(3) of the Ordinance and were by the clear terms thereof continued until the expiry of the Ordinance.
We are not here concerned with the equities of individual cases.
There may be cases in which the Ordinance worked to the prejudice of the owner of the requisitioned land.
In such cases the necessary relief could be granted by the appropriate Government by releasing the immoveable property from requisition.
But the Courts would be helpless in the matter.
Once the conclusion was reached that a particular measure was lawfully enacted by a legislative authority covering the particular case in question the hands of the Court would be tied and the legislative measure would have to be given its legitimate effect, unless mala fides or abuse of power were alleged.
We have therefore come to the conclusion that both the trial Court and the Court of appeal were in error when they reached the conclusion that clause 3 of the Ordinance had not the effect of continuing the requisition order in question.
Mr. Palkhivala at the close of the arguments appealed to us that his client was a petty landlady and the immoveable property which she owned was of a small value and the result of an order of remand would be to put her to further harassment and costs.
He pointed out to us that he had particularly requested the Court of appeal not to decide the appeal merely on the short 215 point in regard to the construction of clause 3 of the Ordinance, but to decide it on all the points which had been canvassed before trial Court.
But the Court of appeal turned down his request and decided the appeal only on that point stating that it; was unnecessary to go into the other points which Mr. Palkhivala wanted to urge before it.
It is to be regretted that the Court of appeal did not respond to Mr. Palkhivala 's request, but we have not had the benefit of the judgment of the Court of appeal on those points which found favour with the trial Court and which were not considered by the Court of appeal and we cannot help remanding the matter to the Court of appeal with a direction that the appeal be disposed of on all the points which were dealt with by the trial Court.
It was unfortunate for the first respondent to be pitted against the appellants who considered that this was a test case and the matter had to be fought out in detail inasmuch as it affected a series of cases And the properties involved would be considerable as alleged by Mr. Seervai before the trial Court.
We are not concerned with the policy of the appellants in making test cases of this character.
The only thing that impresses us in this case is that the unfortunate first respondent has had to bear the brunt of the battle and has been worsted in this preliminary point which was found in her favour both by the trial Court and the Court of appeal.
We cannot make any order for costs in her favour.
But we think that the justice of the case requires that the appellants as well as the first respondent will bear and pay their own respective costs both here and in the Court of appeal.
We therefore allow the appeal, set aside the decree passed by the Court of appeal and remand the Appeal No. 117 of 1952 for hearing and final disposal by the Court of appeal on the other points which have been raised in the matter after hearing both the parties.
There will be no order as to costs here as well as in the Court of appeal.
Appeal allowed.

summary:
Three shoprooms were requisitioned on April 15, 1943, under the Defence of India Rules and the requisition order inter alia stated that is the said requisitioned property shall be continued in requisition during the period of present war and six months thereafter or for such shorter period as may be specified by the Food Controller, Bombay. .
Held, that on a plain and grammatical construction of cls.
2(3) and 3 of Ordinance XIX of 1946, the immoveable property which when the Defence of India Act expired on the 30th September, 1946, was subject to any requisition order effected under the Act and the rules thereunder, continued to be subject to requisition until the expiry of Ordinance, no matter whether the requisition order to which the immoveable property was subject was of a limited duration or an indefinite period.
The ordinary rule is that there should be a close approxima tion between the non obstante clause and the operative portion of the section but the non obstante clause need not necessarily and always be co extensive with the operative part if it has the effect of cutting down the clear terms of an enactment.


judgement:
l Appeals Nos.
1567 of 1968, 585 to 1026 and 1027 to 1082 of 1969.
Appeals by special leave from the orders dated March 28, 1968 and July 20, 1968 of the Labour Court (11), U.P., Lucknow in Misc.
Cases Nos. 102 of 1965 etc.
M. C. Chagla, Harish Chandra, H. K. Purl and Bishambar Lal for the appellant (in all the appeals).
J. P. Goyal and V. C. Prashar, for respondent No. 1 (in all the appeals).
section P. Nayar, for the Attorney General (in C.As.
585 to 1026 and 1027 to 1082 of 1969).
The Judgment of the, Court was delivered by Shah, J.
These three groups of appeals arise out of orders made by the Presiding Officer, Labour Court (11), U.P., Lucknow awarding retrenchment compensation to certain employees of the U.P. Electric Supply Company Ltd. (in liquidation).
In the last group of appeals orders of the Labour Court awarding in addition thereto compensation for earned leave not enjoyed by the employees are also challenged.
The U.P. Electric Supply Company Ltd. hereinafter called the Company ' held two licences issued in 1914 by the Government of U.P. for generating and distributing electricity within thetowns of Allahabad and Lucknow.
The periods of the licenses expired in 1964.
Pursuant to the provisions of paragraph 12(1) in each of the said licenses and in exercise of the power under section 6 of the , the State Electricity Board, U.P. hereinafter referred to as "the Board took over the undertaking of the Company at Allahabad and Lucknow from the mid night of September 16, 1964.
The Company accordingly 510 ceased to carry on the business of generation and distribution of electricity in the areas covered by the original licences.
All the workmen of the undertakings at Allahabad and Lucknow were taken over in the employment of the Board with effect from September 17, 1964, without any break in the continuity of employment.
On December 22, 1964, 443 workmen employed in the Allahabad undertaking filed before the Labour Court, applications under section 6 H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice.
The work men submitted that fresh letters of appointment were issued by the Board on September 16, 1964, taking them in the employment of the Board with effect from September 17, 1964 "in the posts and positions which they previously held", but without giving credit for their past services with the Company.
The workmen contended that they were entitled to retrenchment compensation and salary in lieu of notice, and prayed for computation of those benefits in terms of money and for directions to the Company to pay them the amount so computed.
A group of 56 workmen employed at the Company 's undertaking at Lucknow also submitted applications under section 6H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice and also for compensation for accumulated earned leave not enjoyed by them till September 16, 1964.
In the applications filed by the workmen of the Allahabad undertaking, the Labour Court awarded to each workman retrenchment compensation at the rates specified in the order and also one month 's salary and costs.
To each workman of the Lucknow undertaking the Labour Court awarded retrenchment compensation at the rate specified, salary in lieu of one month 's notice, and also, wages for 30 days for earned leave not enjoyed by the workman before the closure of the undertaking, and costs.
The Company has appealed to this Court against the orders with special leave.
The orders for payment of retrenchment compensation are resisted by the Company on two grounds (i) that the Labour Court was incompetent to entertain and decide the applications for awarding retrenchment compensation; and (ii) that the workmen were not in fact retrenched, and in any event since the workmen were admitted to the service of the Board without break in continuity, and on terms not less favourable than the terms enjoyed by them with the Com 511 pany, the Company was under no liability to pay retrenchment compensation.
Some argument was advanced before us that in determining matters relating to the award of retrenchment compensation, the provisions of the , and not the U.P. , apply.
The question is academic, because on the points in controversy between the parties, the statutory provisions of the , and the U.P. , are substantially the same.
We may, however, briefly refer to this argument since, relying upon a judgment of this Court to be presently noticed, counsel for the workmen insisted that section 33 C(2) of the alone may apply.
After the enactment of the , by the Dominion Parliament, the U.P. , was enacted by the Provincial Legislature.
The scheme of them two Acts is substantially the same.
Chapter V A relating to layoff and retrenchment was added in the by Act 43 of 1953 with effect from October 24, 1953.
From time to time amendments were made in the provisions of the Act.
By section 25 J (2) it was provided "For the removal of doubts, it is hereby declared that nothing contained in this Chapter shall be deemed to affect the provisions of any other law for the time being in force in any State in so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be deter mined in accordance with the provisions of this Chapter.
" After this sub section was incorporated in the , a group of sections including section 6 R were incorporated in the U.P. by U.P. Act 1 of 1957.
Section 6 R(2) provided : "For the removal of doubts, it is hereby declared that nothing contained in Sections 6 H to 6 R shall 'be deemed to affect the provision of any other law for the time being in force so far as that law provides for the settlement of industrial disputes, but the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Sections 6 H to 6 Q." By virtue of section 6 R(2) the provisions of the U.P. , prima facie, apply in the matters of lay off and retrenchment, because under the Seventh Schedule to the Constitution 512 legislation in respect of "Trade Unions, Industrial and Labour Disputes" falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation.
Whereas by adding section 25 J(2) it was enacted that under the , the rights and liabilities of employers and workmen in so far as they relate to lay off and retrenchment shall be determined in accordance with the provisions of Ch.
V A of that Act, by the U.P. Act as amended by Act 1 of 1957, section 6 R(2) enacts that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of sections 6 J to 6 Q. Competence of the State Legislature to enact section 6 R(2) is not denied.
Act 1 of 1957 received the assent of the President and by virtue of article 254(2) of the Constitution section 6 R(2) of the U.P. Act prevails, notwithstanding any prior law made by the Parliament.
The provisions of the U.P. Act including section 6 R(2) therefore apply in determining the rights and obligations of the parties in respect of retrenchment compensation.
The observation to the contrary made by this Court in Rohtak & Hissar Districts Electric Supply Company vs State of U.P. (1) which primarily raised a dispute relating to the validity of certain model standing orders proceeded upon a concession made at the Bar, and cannot be regarded as decisive.
Since the relevant provisions of the two Acts on the matter in controversy in these groups of appeals are not materially different, we do not think it necessary in this case to refer the question to a larger Bench.
We, accordingly, propose to refer only to, the provisions of the U.P.
Section 4 A of the U.P. Act authorises the State Government to constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the First Schedule and for performing such other functions as may be assigned to them under the Act.
The items specified in the First Schedule are 1.
The propriety or legality of an order passed by an employer under the Standing Orders; 2 .
The application and interpretation of Standing Orders 3 .
Discharge or dismissal of workman including reinstatement of, or grant of relief to, workmen wrongfully dismissed; 4.
Withdrawal of any customary concession or privilege; (1) 513 5.
Illegality or otherwise of a strike or lock out; and 6.
All matters other than those, specified in the Second Schedule.
" Section 4 B authorises the State Government to constitute one or more Industrial Tribunals for the adjudication of industrial disputes relating to any matter whether specified in the First Schedule or the Second Schedule.
Item 10 of the Second Schedule relates to "Retrenchment of workmen and closure of establishment".
Prima facie, disputes relating to retrenchment of workmen and closure of establishment fall within the exclusive competence of the Industrial Tribunal, and not within the competence of the Labour Court constituted under section 4 A.
The Company had expressly raised a contention that they had not retrenched the workmen and that the workmen had voluntarily abandoned the Company 's service by seeking employment with the Board ' even before the Company closed its undertaking.
The workmen contended by their petitions filed before the Labour Courts that they were retrenched, the Company contended that the workmen had voluntarily abandoned the employment under the Company because they found it more profitable to take up employment under the Board without any break in the same post and on the same terms and conditions on which they were employed by the Company.
This clearly raises the question whether there was retrenchment of workmen, which gave rise to liability to pay retrenchment compensation.
A dispute relating to retrenchment is exclusively within the competence of the Industrial Tribunal by virtue of item 10 of the Second Schedule to the U.P. , and is not within the competence of the Labour Court.
Section 6 H of the U.P. Act provides : (1) Where any money is due to a workman from an employer under the provisions of Sections 6 J to 6 R or under a settlement or award, or under an award given by an adjudicator or the State Industrial Tribunal appointed or constituted under this Act, before the com mencement of the Uttar Pradesh Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the workman may, without prejudice to any other mode of recovery, make an application to the State Government for the recovery of the money due to him, and if the State Government is satisfied that any amount is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same as if it were an arrear of land revenue.
(2) Where any workman is entitled to receive from the employer any benefit which is capable of being computed in terms of money, the amount at which such 514 benefit should be computed may, subject to any rules that may be made under this Act be determined by such Labour Court as may be specified in this behalf by the State Government, and the amount so determined may be recovered as provided for in sub section (1).
(3) Under section 6 H(2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money and the denial of liability by the Company did not affect the jurisdiction of the Labour Court.
In several decisions of this Court the inter relation between sub sections
(1) & (2) of section 33 C (which are substantially in the same terms as sub sections
(1) & (2) of section 6 H of the U.P. ) was examined.
It was held by this Court in The Central Bank of India Ltd. vs P. section Rajagopalan etc.(1) that the scope of section 33 C(2) is wider than that of section 33 C(1).
Claims made under section 33 C(1) can only be those which are referrable to settlement, award or the relevant provisions of Ch.
V A, but those limitations are not to be found in section 33 C(2).
The three categories of claims mentioned in section 33 C(1) fall under section 33 C(2) and in that sense section 33 C(2) can itself be deemed to be a kind of execution proceeding, but it is possible that claims not based on settlements, awards or made under the provisions of Ch.
V A may also be competent under section 33 C(2).
Elaborating this thesis Gajendragadkar, J., who delivered the judgment of the Court observed (pp. 155 156) "There is no doubt that the three, categories of claims mentioned in section 33C(1) fall under section 33C(2) and in that sense, section 33C(2) can itself be deemed to be a kind of execution proceeding; but it is possible that claims not based on settlements, awards or made under the provisions of Chapter V A, may also be competent under section 33C(2) and that may illustrate its wider scope.
We would, however, like to indicate some of the claims which would not fall under section 33C(2), because they formed the subject matter of the appeals which have been grouped together for our decision along with the appeals with which we are dealing at present.
If an employee is dismissed or demoted and it is his case that the dismissal or demotion is wrongful, it would not be open to him to make a claim for the recovery of his salary or wages under section 33C(2).
His demotion or dismissal may give rise to an industrial dispute which may (1) 515 be appropriately tried, but once it is shown that the employer has dismissed or demoted him, a claim that the dismissal or demotion is unlawful and, therefore, the employee continues to be the workman of the employer and is entitled to the benefits due to him under a pre existing contract, cannot be made under section 33C(2).
" The same view was reiterated in Bombay Gas Co. Ltd. vs Gopal Bhiva and Others(1).
Mr. Goyal on behalf of the workmen, however, contended that in a recent judgment of this Court a different view has been expressed.
He invited our attention to The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammad Khan, etc.(2).
In that case the Electricity undertaking was taken over by the Government of Madras in exercise of the powers conferred by the Madras Electricity Supply Undertakings (Acquisition) Act, 1954, and the employees of the undertaking were taken over by the new employer.
The employees claimed retrenchment compensation from the old employer under section 25FF, of the .
It was urged before this Court that the Labour Court was incompetent to decide the claim for retrenchment compensation.
This Court observed that section 25FF(b) applied as the terms of service under the new employer were less favourable than those under the old employer, and under the terms of sections 15 (1 ) & (2) of the Acquisition Act and sections 9A and 10 of the , liability to pay retrenchment compensation rested upon the previous employer and on that account the Labour Court was competent to entertain the petitions under section 33C(2).
The language of section 25FF in the view of the Court made it perfectly clear that if the right to compensation accrued under the Act, the workmen became entitled to receive retrenchment compensation, when under the Madras Act the undertaking stood transferred to the State Government from the Company.
Referring to the contention that the Labour Court was not competent to determine the liability to Day retrenchment compensation, where the liability itself was denied, the Court referred to the judgments of this Court in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others(3); State Bank of Bikaner (4) ; and Jaipur vs R. L. Khandelwal Punjab National Bank Ltd. vs K. L. Kharbanda(5); Central Bank of India vs P. section Rajagopalan and Others(6); and Bombay Gas Company Ltd. vs Gopal Bhiva and Others(1), and proceeded to observe that the right (1) [1964] (2) (3) [1968] 1 S.C.R. 140.
(4) (5) [1962] Supp. 2 S.C.R. 977.
(6) ; 516 which has been claimed by the various workmen in their applications under section 33C(2) of the Act was a right which accrued to them under section 25FF of the Act and was an existing right at the time when those applications were made, and the Labour Court had jurisdiction to decide, in dealing with the applications under that provision, whether such a right did or did not exist.
The mere denial of that right by the Company, it was said, could not take away its jurisdiction and that the order of the Labour Court was competently made.
The decision in the Central Bank of India vs P. section Rajago palan and Others(1), to which we have already referred, makes it clear that all disputes relating to claims which may be computed in terms of money are not necessarily within the terms of section 33C(2).
Again in Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others (2 ) Shelat, J., observed : ". . that the right to the benefit which is sought to be computed under section 33C(2) must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between an industrial workman and his employer.
Since the scope of sub section
(2) is wider than that of sub section
(1) and the sub section is not confined to cases arising under an award, settlement or under the provisions of Ch.
V A, there is no reason to hold that a benefit provided for under a statute or a scheme made thereunder, without there being anything contrary under such statute or section 33C(2), cannot fall within sub section
Consequently, the benefit provided in the bonus scheme made under the Coal Mines Provi dent Fund and Bonus Schemes Act, 1948, which remains to be computed must fall under sub section
(2) and the Labour Court therefore had jurisdiction to entertain and try such a claim, it being a claim in respect of an existing right arising from the relationship of an industrial workman and his employer.
" That judgment clearly indicates that in order that a claim may be adjudicated upon under section 3 3C (2), there must be an existing right and the right must arise under an award, settlement or under the provisions of Ch.
V A, or it must be a benefit provided by a statute or a scheme made thereunder and there must be nothing .contrary under such statute or section 3 3C (2).
But the possibility of a mere claim arising under Ch.
V A is not envisaged by the Court in that case as conferring jurisdiction upon the Labour Court to decide matters which are essentially within the jurisdiction of the Industrial Tribunal.
(1) ; (2) [1968] 1 S.C.R. 140.
517 The legislative intention disclosed by sections 33 C ( 1 ) and 3 3 C (2) is fairly clear.
Under section 33 C(1) where any money is due to a workman from an employer under a settlement or an award or under the provisions of Ch.
V A, the workman himself, or any other person authorised by him in writing in that behalf, may make an application to the appropriate Government to recover of the money due to him.
Where the workman who is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money, applies in that behalf, the Labour Court may under section 33 C(2) decide the questions arising as to the amount of money due or as to the amount at which such benefit shall be computed.
Section 33 C(2) is wider than section 33C(1).
Matters which do not fall within the terms of section 33C(1) may, if the workman is shown to be entitled to receive the benefits, fall within the terms of section 33C(2).
If the liability arises from an award, settlement or under the provisions of Ch.
V A, or by virtue of a statute or a scheme made thereunder, mere denial by the employer may not be sufficient to negative the claim under section 33 C(2) before the Labour Court.
Where however the right to retrenchment compensation which is the foundation of the claim is itself a matter which is exclusively within the competence of the Industrial Tribunal to be adjudicated upon a reference, it would be straining the language of section 33C(2) to hold that the question whether there has been retrenchment may be decided by the, Labour Court.
The power of the Labour Court is to compute the compensation claimed to be payable to the workmen on the footing that there has been retrenchment of the workmen.
Where retrenchment is conceded, and the only matter in dispute is that by virtue of section 25FF no liability to pay compensation has arisen the Labour Court will be competent to decide the question.
In such a case the question is one of computation and not of determination, of the conditions precedent to the accrual of liability.
Where, however, the dispute is whether workmen have been retrenched and computation of the amount is subsidiary or incidental, in our judgment, the Labour Court will have no authority to trespass upon the powers of the Tribunal with which it is statutorily invested.
In the unreported judgment of this Court in The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammed Khan, etc.(1) apparently the only argument advanced before this Court was that section 25FF applied to that case having regard to the fact that the terms of employment under the new employer were not less favourable than those immediately applicable to them before the transfer, and the Court proceeded to hold that the Labour Court was competent to determine the compensation.
(1) 518 The finding that the Labour Court was incompetent to decide .the applications of the workmen would be sufficient to dispose of the appeals before us.
But other arguments were advanced before us, and which have an important bearing on the claims made : we propose briefly to deal with these arguments.
Assuming that the Labour Court had jurisdiction to determine the liability of the Company to pay retrenchment compensation no order awarding retrenchment compensation could still be made without recording a finding that there was retrenchment of the workmen and compensation was payable for retrenchment.
Section 6 0 of the U.P. (which in its phraseology is somewhat different from section 25FF of the Industrial Disputes Act) provides : "Notwithstanding anything contained in Section 6 N no workman shall be entitled to compensation under that section by reason merely of the fact that there has been a change of employers in any case where the ownership or management of the undertaking in which he is employed is transferred, whether by agreement or by operation of law, from one employer to another Provided that (a) the service of the workman has not been interrupted by reason of the transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favourable than those applicable to him immediately before the transfer; and (c) the employer to whom the ownership or management of the undertaking is so transferred is, under the terms of the transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer." In the present groups of appeals it is common ground that there was no interruption resulting from the undertaking being taken over by the Board.
The agreements between the Board and the workmen to admit the workmen into employment of the Board were reached before the undertakings of the Company were taken over.
The Company contended that the terms and conditions of service applicable to workmen after the transfer were not in any way less favourable to the workmen than those applicable to them immediately before the undertakings were taken ,over, and that the employer to whom the ownership or manage 519 ment of the undertakings were so transferred was, under the terms of the transfer or otherwise, legally liable to pay to the workmen, in the event of their retrenchment, compensation on the basis that their services had been continuous and had not been interrupted by the taking over.
The workmen denied that claim.
The Labour Court could award compensation only if it determined the matter in controversy in favour of the workmen it could not assume that the conditions of the proviso to section 6 0 were fulfilled.
Section 6 0 is in terms negative.
It deprives the workmen of the right to retrenchment compensation in the conditions mentioned therein.
The Company asserted that the conditions precedent to the exercise of jurisdiction did not exist.
The workmen asserted the existence of the conditions.
Without deciding the issue, the Labour Court could not compute the amount of compensation payable to the workmen.
On the assumption that the workmen had been retrenched and their claim fell within the proviso to section 6 0.
It was urged by Mr. Goyal on behalf of the workmen that this plea was not raised or argued before the Labour Court, and it cannot be permitted to be raised in this Court.
But this contention was raised in the reply filed by the Company, and the judgment of the Labour Court does indicate that its authority to decide that question was disputed.
We are unable to hold that the objection though raised was not urged before the Labour Court, and on that account to confirm the decision of the Labour Court which until the matter in controversy was decided could not be rendered.
Even if, therefore, the Labour Court was competent to entertain the dispute relating to award of retrenchment com pensation, the order made by the Labour Court must be set aside.
One more contention raised at the Bar by Mr. Chagla for the Company may be considered.
It was urged that the obligation to pay retrenchment compensation in the event of liability arising must in law be deemed to be taken over by the Board.
In The Board of Directors of the South Arcot Electricity Distribution Company Ltd. vs N. K. Mohammad Khan, etc.(1), to which we have already made a reference, it was contended on behalf of the Electricity Company that the liability to pay retrenchment cornpensation did not fall on the licensee, but on the Madras Government.
This Court held, having regard to the scheme of the Act that if retrenchment compensation is payable, it is the original undertaking which remains liable, and not the undertaking which takes over the business.
Counsel however relied upon sections 6 and 7 of the , in support of his plea that the liability to pay retrenchment compensation rests upon the (1) 14Sup.
Cl/69 4 520 undertaking which takes over the undertaking.
Section 6 of the , provides : "(1) Where a license has been granted to pay person, not being a local authority, the State Electricity Board shall (a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959, on the expiration of each such period as is specified in the license; and (b) have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than one year requiring the licensee to sell the 'Undertaking to it at the expiry of the relevant period referred to in this sub section.
ln the present case notice was given of termination of the license after the expiry of the period of the original license and the Board took over the undertaking of the Company.
Section 7 of the provides : "Where an undertaking is sold under section . 6 then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under sub section (6) of section 6 (i) the undertaking shall vest in the purchaser . . free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking : Provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking; (ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee : Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation.
" 521 It is clear that when the undertaking vests in the purchaser, any debt mortgage or similar obligation attaches to the purchase money in substitution of the undertaking.
The liability to pay retrenchment compensation is a debt : if it arises on transfer it will attach to the purchase money payable to the Company in substitution for the undertaking.
Sections 6 and 7 of the do not support the case of the Company that the liability is enforceable against the Board after it takes over the undertakings.
The provisions of sections 57 and 57A of the Indian , also do not assist the case of the, Company.
Sections 57 & 57A of the , deal with the licensee 's charges to consumers and the Rating Committees.
By the Sixth Schedule dealing with financial principles and their application, it is provided by cl.
TV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account.
By cl.
V of the Sixth Schedule it is provided : "(1) The Contingencies Reserve shall not be drawn upon during the currency of the licence except to meet such charges as the State Government may approve as being (a) expenses or loss of profits arising out of accidents, strikes or circumstances which the management could not have prevented; (b) expenses on replacement or removal of plant or works other than expenses requisite for normal maintenance or renewal; (c) compensation payable under any law for the time being in force and for which no other provision is made.
(2) On the purchase of the undertaking, the Contingencies Reserve, after deduction of the amounts drawn under sub paragraph (1), shall be handed over to the purchaser and maintained as such Contingencies Reserve : Provided that where the undertaking is purchased by the Board or the State Government, the amount of the Reserve computed as above shall, after further deduction of the amount of compensation, if any, payable to the employees of the outgoing licensee under any law for the time being in force, be handed over to the Board or the State Government, as the case may be." 522 Clause V only provides for the appropriation of the Contingencies Reserve : it requires an undertaking to hand over the Contingencies Reserve to the purchaser.
If any amount of compensation is payable to the employees of the outgoing licensee under any law for the time being in force, it is chargeable to the Contingencies Reserve.
If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of cl.
V sub cl.
(2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.
It was urged that the Contingencies Reserve has been paid over to the purchaser.
There is, however, no finding by the Labour Court in that behalf.
If it be found in appropriate proceedings that retrenchment compensation is payable to the workmen and the Contingencies Reserve out of which it is payable has been handed over to the Board, the charge for payment of that amount may attach to that amount.
On that matter we need express no opinion at this stage.
Finally it was contended and that contention relates only to the cases of 56 workmen in the Lucknow undertaking that the workmen who had not availed themselves of earned leave were ,entitled to compensation equal to thirty days wages.
But we do not think that any such compensation is statutorily payable.
So long as the Company was carrying on its business, it was obliged to give facility for enjoying earned leave to its workmen.
But after the Company closed its business, it could not obviously give any earned leave to those workmen, nor could the workmen claim any compensation for not availing themselves of the leave.
In the absence of any provision in the statute governing the right to compensation for earned leave not availed of by the workmen before closure, or transfer of an undertaking, we do not think that any such compensation is payable.
On the view taken by us that the Labour Court was incom petent to determine the question as to liability to pay retrenchment compensation, these appeals must be allowed and the petitions under section 6 H(2) filed by the respondents must be dismissed.
There will be no order as to costs throughout.
G.C. Appeals allowed.

dataset_name: IN-Abs

summary:
In exercise of the power under section 6 of the the undertakings of the appellant company at Allahabad and Lucknow were taken over by the State Electricity Board, U.P. with effect from September 17, 1964.
The workmen of the company were taken into the employment of the Board without any break in continuity of employment.
Certain workmen of the Allahabad undertaking filed before the Labour Court applications under section 6 H(2) of the U.P. , for payment of retrenchment compensation and salary in lieu of notice.
A group of workmen 'from the Lucknow undertaking also sub mitted applications under section 6 H(2) with the same prayers; in addition they claimed compensation for accumulated earned leave not enjoyed by them till September 16, 1964.
The Labour Court allowed the applications.
The Company appealed to this Court by special leave.
According to the company there was no retrenchment of the workmen because they had voluntarily left the service of the company to join the service of the Board with no break in their service.
The questions that fell for consideration wer (i) Whether the matter was to be decided under the provisions of the or those of the U.P. ; (ii) Whether the Labour Court had jurisdiction under section 6 H(2) of the U.P. Act to decide the applications or because of there being dispute as to the liability to pay retrenchment compensation the matter was in view of item 10 of the second schedule to the U.P. Act within the exclusive jurisdiction of the Industrial Tribunal; (iii) Whether section 6 0 of the U.P. Act also necessitated that the question of liability to pay retrenchment compensation be first determined; (iv) Whether in view of sections 6 & 7 of the and sections 57 & 57A of the Indian read with Cl.
V of the sixth schedule thereto, the liability to pay retrenchment compensation was that of the Board and not that of the company; (v) Whether the claim of the Lucknow workmen for compensation for earned leave not enjoyed by them was allowable.
Held : (i) Under the Seventh Schedule to the constitution legislation in respect of 'Trade Union Industrial and Labour Disputes ' falls within Entry 22 of the Concurrent List and both the State and the Union are competent to legislate in respect of that field of legislation.
Act 1 of 1957 added to the U.P. , section 6 R(2) which enacts that the rights and liabilities of employers and workmen relating to lay off and retrenchment shall be determined in accordance with the provisions of 508 sections 6 J to of 1957 received the assent of the President and by virtue of article 254(2) of the Constitution section 6 R(2) of the U.P. Act prevails notwithstanding any prior law made by the Parliament.
The rights and obligations of the parties had therefore to be decided under the U.P. Act including section 6 R(2).
[511 H 512 D] Rohtak & Hissar Districts Electric Supply Company vs State of U.P., , distinguished.
(ii) Section 6 H(1) and (2) of the U.P. Act were substantially the same as sub sections
(1) and (2) of section 33 C of the Central Act and cases decided by this Court under the latter provisions were applicable in the interpretation of the former.
According to the rule laid down in section 6 H(2) the Labour Court was competent to determine what each workman was entitled to receive from the employer by way of retrenchment compensation payable in terms of money and the denial of liability of the company did not affect the jurisdiction of the Labour Court.
Where, however, as in the present case, the dispute was whether the workmen had been retrenched and computation of the amount of compensation was subsidiary or incidental, the, Labour Court had no authority to trespass upon the powers of the industrial Tribunal which had exclusive jurisdiction under item 10 of the second schedule of the U.P. Act to decide disputes relating to retrenchment.
[514 B D 517 F] The Central Bank of India, Ltd. vs P. section Rajagopalan etc. ; and Bombay Gas Co. Ltd. vs Gopal Bhiva and Others, ; , applied.
The Board of Directors of the South Arcot Electricity Distribution Co. Ltd. vs N. K. Mohammad Khan etc., , explained.
Chief Mining Engineer, East India Coal Co. Ltd. vs Rameswar and Others, [1968] 1 S.C.R. 140, State Bank of Bikaner and Jaipur vs R. L. Khandelwal, and Punjab National Bank Ltd. vs K. L. Kharbanda, [1962] Supp.
2 S.C.R. 977, referred to.
(iii) Assuming that the Labour Court had jurisdiction to determine the liability of the company to pay retrenchment compensation no order awarding retrenchment compensation could still be made without recording a finding that workmen were retrenched and compensation was payable for the retrenchment.
For section 6 0 of the U.P. Act deprives the workmen of the right to retrenchment compensation in the conditions mentioned therein.
The company asserted , that the conditions precedent to the exercise of the jurisdiction did not exist while the workmen asserted the existence of the conditions.
Without deciding the, issue the Labour Court could not compute the amount of compensation payable to the workmen on the assumption that the workmen had been retrenched and their claim fell within section 6 0.
[518 B; 519 B C] (iv) Sections 6 and 7 of the did not support the case of the Company that the liability was enforceable against the Board after it took over the undertaking.
Under these sections when the undertaking vests in the purchaser, any debt, mortgage or similar obligation attaches to the purchase money in substitution of the undertaking.
The liability to pay retrenchment compensation is a debt : if it arises on transfer it will attach to the purchase money payable to the Company in substitution of the undertaking.
[521 A B] 509 (v) The provisions of sections 57 and 57A of the Indian , also did not assist the case of the Company.
These sections deal with the licencee 's charges to consumers and the Rating Committees.
In the Sixth Schedule to the Act (incorporated into every license by section 57 'aforesaid) it is provided by cl.
IV that certain amount shall be appropriated towards Contingencies Reserve from the revenues of each year of account.
Clause V then provides for the appropriation of the Contingencies Reserve :it requires the undertaking to hand over the Contingencies Reserve to the purchaser.
If the retrenchment compensation becomes properly due to the employees of the Company, it would, by virtue of cl.
V sub cl.
(2) proviso, be charged upon the Contingencies Reserve and the balance alone would be handed over to the purchaser.
In the present case however there was no finding by the Labour Court that the Contingencies Reserve had been paid over to the purchaser.
521 C 522 Cl (vi) The claim of the Lucknow workmen to compensation in lieu of earned leave not enjoyed by them could not be allowed.
After the company closed its business it could obviously not give any earned leave to these workmen 'and the latter could not claim it.
In the absence of a statutory provision to that effect no such compensation was payable.
[522 E]


judgement:
Civil Appeal No. 1526 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated May 4, 1968 of the Madhya Pradesh High Court in Election Petition No. 39 of 1967.
G. L. Sanghi, Sobhag Mal Jain and B. P. Maheshwari, for the appellant.
H. R. Gokhale, P. L. Dubey, Rameshwar Nath and Mahinder Narain, for respondent No. 1.
V. C. Parashar, for respondent No. 4.
The Judgment of the Court was delivered by Shah, J.
At the general elections held in February 1967, Brijraj Singh (first respondent in this appeal) was declared elected to a seat in the Madhya Pradesh Legislative Assembly from the Sabalgarh Constituency defeating his rival candidate Raja Pancham Singh by 1706 votes.
The appellant Ram Dayal who is a voter in the constituency moved an election petition in the High Court of Madhya Pradesh for an order setting aside the election on two grounds : (1) that the nomination paper of one Dhani Ram was illegally rejected by the Returning Officer; and (2) that Brijraj Singh and his agents committed several corrupt practices in relation to the election.
A third ground that Dataram (third respondent in this appeal) when his nomination was accepted was below the age of 25 and was on that account incompetent to stand for election, was sought to set up a new ground made after the expiry of the period prestion.
The application was disallowed by the High Court.
The High Court held that an application for amendment which sought to be set up by an application for amendment of the election peticribed for filling an election petition cannot be entertained.
On 532 a consideration of the evidence the High Court rejected the other grounds, and dismissed the petition.
The appellant has appealed to this Court.
An election petition has, under section 81 (1) of the Representation of the People Act, 1951, to be filed within 45 days of the date of the publication of the result of the election.
An application for setting aside the election, that Dataram was below the age of 25 and on that account the election was liable to be set aside under section 100(1)(d)(i) of the Act made on August 15, 1967, would plainly have been barred, and by amendment the ground could not be permitted to be added.
This Court in Harish Chandra Bajpai vs Triloki Singh(1) held that the Election Tribunal has power to allow an amendment in respect of particulars of illegal and corrupt practices, or to permit new instances to be included.
provided the grounds or charges are specifically stated in the petition, but its power to permit amendment of a petition under O. VI r. 17 of the Code of Civil Procedure will not be exercised so as to allow new grounds or charge,; to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would on the date of the proposed amendment be barred.
By the amendment a new ground for setting aside the election was sought to be introduced, and the High Court was right in rejecting the application for amendment.
The plea that the rejection of the nomination paper of Dhani Ram by the Returning officer was illegal has no substance.
On January 19, 1967 Dhani Ram delivered to the Returning Officer two nomination papers signed by him.
Each nomination paper bore a thumb impression of one Gokla as the proposer.
But the thumb impressions were not authenticated or attested in the presence of the Returning officer or any other officer specified in the Rules.
The Returning Officer rejected the nomination papers.
33(1) of the Representation of the People Act, 1951, requires that each candidate shall deliver to the returning officer a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
The expression "sign" is defined in section 2 (1) of the Act as amended by Act 27 of 1956 as meaning "in relation to a person who is unable to write his name authenticate in such manner as may be prescribed".
Rule 2(2) of the Conduct of Election Rules, 1961 provides : "For the purposes of the Act or these rules, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if (1) ; 533 (a) he has placed a mark on such instrument or other paper in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in this behalf by the Election Commission.
(b) such officer on being satisfied as to his identity has attested the mark as being the mark of that person.
Where a person is unable to write his name, he may place his mark on the instrument or other paper and the requirements of law are complied with, provided he puts the mark in the presence of the Returning officer or the Presiding officer or such other officer as may be specified in that behalf by the Election Commission and such officer on being satisfied as to his identity attests the mark as being the mark of that person.
Gokla was illiterate.
He impressed his thumb mark on the nomination paper : but it was not placed in the presence of any of the designated officers, nor was there any authentication or attestation of the thumb mark The requirement under section 33 (1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory.
Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
Attestation is not a mere technical or unSubstantial, requirement within the meaning of section 36(4) of the Act and cannot be dispensed with.
The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been : Rattan Anmol Singh and Another vs Atma Ram & Others.(1).
The nomination papers of Dhani Ram were filed on the last day fixed for receiving the nomination papers.
Not being attested as required by law on the date of filing, the defect could not be rectified at the time of scrutiny.
Evidence of witnesses for the appellant who deposed that that at the date of scrutiny.
Gokla was present outside the office of the Returning Officer and that Dhani Ram brought to the notice of the Returning Officer that Gokla was present and that his signature may be attested, and that the Returning officer declined to accede to the request need not be considered.
The Returning officer could not allow Dhani Ram or his proposer to rectify the defect in the nomination papers after the last date of nomination.
Several corrupt practices were set up in the petition.
The corrupt practices relied upon by the appellant in this appeal may be broadly classified under three heads (1) ; 534 (1) that on January 19, 1967, Brijraj Singh paid Rs. 250 to Sone Ram respondent No. 5 at Morena and successfully persuaded him not to file his nomination paper.
(2) that Brijraj Singh and his agents toured the constituency in a jeep fitted with a microphone and visited many villages and delivered speeches reflecting upon the character and conduct of Raja Pancham Singh a candidate sponsored by the Congress Party.
One Chhotey Lal respondent No. 4 was made to contest the election by Brijraj Singh to "divide the votes of Raja Pancham Singh" and that Chhotey Lal who supported the candidature of Brijraj Singh made statements between January 20, 1967 and February 19, 1967 and distributed leaflets containing statements of fact relating to the personal character and conduct of Raja Pancham Singh which were false to the knowledge of Chhotey Lal or who did not believe them to be true, and that the leaflets were issued and circulated with the consent of Brijraj Singh, and (3) that the Maharaja Scindia of Gwalior accompanied by Brijraj Singh visited several villages in a helicopter and addressed election meetings in support of the candidature of Brijraj Singh and the Maharaja acted as his agent and incurred expenditure for carrying on election propaganda : if the expenditure incurred for the purpose of obtaining the use of the helicopter and a fleet of motor cars used by him were taken into account, such expenses being incurred or authorised by Brijraj Singh would considerably exceed the limit prescribed by the statute.
In the view of the High Court Chhotey Lal did commit a cor rupt practice in that he distributed on January 29, 1967 at Kelaras village leaflets containing statements of fact relating to the personal conduct of Raja Pancham Singh, but it was not proved that Chhotey Lal contested, the election at the instance of Brijraj Singh "to divide the votes of Raja Pancham Singh" or that he was the agent at any time of Brijraj Singh nor was it proved that Chhotey Lal had ever supported the candidature of Brijraj Singh or that any pamphlet of the nature circulated by Chhotey Lal was issued or circulated by Brijraj Singh.
In that view the High Court held that the election of Brijraj Singh was not materially affected by the candidature of Chhotey Lal. 'Me High Court rejected the contention of the appellant that Brijraj Singh committed other corrupt practices alleged.
The High Court accord 535 ingly passed an order declaring that the appellant had failed to establish that Brijraj Singh had committed any corrupt practice with which he was charged.
The High Court dismissed the election petition filed by the appellant with costs, but declared that the 4th respondent Chhotey Lal was guilty of the corrupt practice within the meaning of section 123 (4) of the Act and was on that account disqualified for a period of six years from the date of the order under section 8A of the Act.
Against that order this appeal has been preferred by the appellant.
Chhotey Lal has not appealed against the order recorded against him.
He is impleaded as a party respondent and he has appeared before this Court through counsel.
At the hearing counsel appearing for Chhotey Lal urged that the finding of the High Court that Chhotey Lal was guilty of the corrupt practice charged against him is contrary to evidence.
But in the absence of an appeal filed by Chhotey Lal the ground cannot be permitted to be agitated by him.
The appeal was filed by the appellant challenging the order of the High Court refusing to set aside the election of Brijarj Singh on the three grounds set out hereinbefore.
the scope of the appeal cannot be expanded by permitting chhotey lal who could have but has not chosen to appeal, to plead that he has not committed any acts amounting to a corrupt practice.
The case that Brijraj Singh gave Rs. 250 to Sone Ram and induced him to withdraw his candidature is unreliable.
One Shanker Lal deposed that on January 19, 1967, he met Brijraj Singh and Sone Ram in the compound of the office of the Collector, Morena, and the former induced Sone Ram not to contest the election and offered to pay a bribe of Rs. 250, and paid Rs. 250 to Sone Ram.
According to the witness there were several persons present at the time when the bribe was offered and paid, but none of those persons was called as a witness on behalf of the appelant.
One Tikaram who was alleged to be present was examined on behalf of Brijraj Singh and he denied that any such offer was made or bribe paid.
Sone Ram also denied that he had received any bribe from Brijraj Singh.
He stated that he had borrowed Rs. 200 from his maternal uncle to deposit the amount for his candidature but since his maternal uncle declined to incur any further expenditure and dissuaded him from contesting the election he had to abandon his candidature.
In the opinion of the Trial Judge the witness Shanker Lal was an untruthful witness and we see no reason to disagree with that view.
We may now turn to the plea that Brijraj Singh made false allegations against the personal conduct and 'character of Raja Pancham Singh orally and by circulating pamphlets, on which a great deal of argument was advanced before us.
It was the case Sup, C.1.169 5 536 of the appellant that Brijraj Singh and his two workers Laxmi chand and Shankarlal visited several villages between February 2, 1967 and February 26, 1967, in connection with the election campaign and made false statements against the character and conduct of Pancham Singh in the meetings held in those villages, and "in door to door canvassing in" those villages.
Those allegations are denied by Brijraj Singh and by Laxmichand and Shankar lal.
The case of the appellant was that these allegations were made in the course of the election propaganda in ten villages.
but evidence was led in respect of statements made in six villages.
It is said that Brijraj Singh and his supporters visited the village Narhela and held a meeting in that village.
One Dhaniram stated that a meeting was held at the village Narhela, but the witness did not say that either Brijraj Singh or his workers made any allegations against the personal character of Pancham Singh.
According to this witness Brijraj Singh merely requested the persons assembled therein the.
meeting to vote for him.
Witness Ghansu stated that a meeting was held at the village Narhela and the same was addressed by Brijraj Singh and Laxmichand and that these two persons stated that Pancham Singh was " associating with dacoits" and had misappropriated money belonging to a school and had got the school closed and that whenever any member of the legislative assembly sought to visit him be set his dogs at him.
In the election petition there was no reference to any meeting held at Narhela or of any offending statements made at any such meeting.
It was stated in paragraph III(a) of the election petition, in setting out the details of the corrupt practices, that the first respondent accompanied by Laxmichand and Shankerlal toured in a jeep fitted with a microphone and visited the village Narhela on February 2, 1967 and canvassed votes going from door to door.
The witness Ghansu did not belong to Narhela, and no witness from village Narhela was examined.
Laxmichand, Shankerlal and Brijlal Singh denied that any statement against the personal conduct and character of Pancham Singh was made by them at Narhela either in any meeting or in "door to door canvassing".
Phoolsingh the only witness examined on behalf of the appellant did not support his case that Singh at Budhreta.
About the village Khirla, witness Kesharsingh stated that Brijraj Singh and Laxmichand had held meetings and had made statements against the personal conduct and character of Pancham Singh.
But the witness did not belong to the village Khirla : he is a resident of Pahadgarh village which is at a distance of fifteen miles from Khirla.
No witness from Khirla was examined.
Witness Dataram said that at a meeting held at Sujarma, Brijraj Singh had made any statements derogatory of Pancham Pancham Singh." But the testimony of the witness who is said to be constantly under "police surveillance" is unreliable.
About the meeting held at Village Kelaras the appellant examined three 537 witnesses Narayan, Kanhaiyalal and Sardarsingh.
The first two.
witnesses said nothing about any statement made about the personal character of Raja Pancham Singh at the meeting.
Sardarsingh supported the case, of the appellant, but the testimony of the witness was inconsistent with the case of the appellant.
About the meeting held at village Kulouli the appellant examined witness Badri who stated that both Brijraj Singh and Laxmichand had made statements derogatory of Pancham Singh.
His explanation about his presence at the village Kulouli was apparently untrue and his testimony was otherwise unreliable.
The learned Judge summarised the evidence of the witnesses.
on behalf of the appellant and concluded that the appellant had, "miserably failed" to establish that Brijraj Singh and his agents Laxmichand and Shankar Lai had made any statements derogatory to the personal character of Pancham Singh.
In the view of the learned Judge it was not proved that Brijraj Singh and his two agents had made statements that Pancham Singh was an associate of dacoits, nor was the statement that Pancham Singh had misappropriated the funds of the school proved.
The learned Judge, also held that the statement alleged to have been made by Brijraj Singh and his agents that Pancham Singh was responsible for getting the school at Pahadgarh closed and that "he lets loose ferocious dogs towards the persons who go to see him" were trivial and did not involve any moral turpitude, and even assuming that those statements were made, no corrupt practice could we said to have been committed on that account under section 123 (4) of the Act.
The learned Trial Judge found that Chhotey Lal committed a corrupt practice by distributing pamphlets casting reflections upon the personal character of Pancham Singh.
But in the view of the learned Trial Judge there was no reliable evidence to prove that Chhotey Lal acted on behalf of Brijraj Singh.
or that the latter defrayed the expenses of the pamphlet or that the agents of Brijraj Singh distributed the offending pamphlets.
The learned Judge has carefully considered the evidence and no serious argument has been advanced before us on that part of the case which may justify as in taking a different view.
Not a word was said that the expenses incurred by Chhotey Lal for getting the pamphlets printed were reimbursed, nor was the evidence of the witnesses Sanwaldas Gupta, Kalyansingh Tyagi examined on behalf of the appellant hat Brijraj Singh and his agents circulated the Pamphlets true.
The learned Judge observed that the story that out of the 2,500 copies of the pamphlets printed, 2,000 copies of the pamphlet had been handed over by Chhotey Lal to Brijraj Singh on the night on January 19, 1967, was "a clumsy and crude invention of these wo witnesses", and "was utterly false and unreliable".
After con 538 sidering the various improbabilities and the discrepancies relating to the testimony of the witnesses Sanwaldas Gupta and Kalyansingh Tyagi, the learned Judge observed that these witnesses "invented lies" and did "their best to introduce clumsy and crude improvements at the stage of evidence" with the "object of bolstering up" the appellant 's case and through him that of Raja Pancham Singh.
In his view the story that the pamphlet Annexure 'A ' was issued or circulated with the consent of Brijraj Singh was false.
The learned Judge also found on a consideration of the evidence that at no stage did Chhotey Lal support the candidature of Brijraj Singh and that it was not proved that the pamphlet Annexure 'A ' was ever issued or circulated with the consent ,of Brijraj Singh.
In his view Brijraj Singh had no connection with the printing and publication of the pamphlet and on that account the plea of corrupt practice set out and founded on the ,circulation of the pamphlet was not proved.
We see no reason to disagree with the view expressed by the learned Judge.
It was then urged that the Maharaja Scindia of Gwalior in curred considerable expenditure as agent of Brijraj Singh in canvassing votes and the expenditure so incurred was liable to be included in the election expenses of Brijraj Singh.
It was claimed that the, Maharaja and the Rajmata of Gwalior as agents of Brijraj Singh took a leading part in canvassing votes in different villages .and in doing so used a helicopter and a fleet of motor cars and spent large sums of money which were not disclosed in the account ,of election expenses filed by the &St respondent Brijraj Singh.
Brijraj Singh had contested the election as an independent candidate.
But the appellant says that the, Maharaja and the Rajmata of Gwalior addressed election meetings and in those meetings they declared that Brijraj Singh was sponsored as a candidate by them, and that the voters should support Brijraj Singh.
Brijraj Singh in his evidence stated that the Maharaja had the "Central Election office of Maharaja Gwalior ' representing the alliance of various political parties and individuals opposed to the Congress candidate and in propagating its views and policy during the election this Organisation also supported the candidates who ,opposed Pancham Singh.
There was no reliable evidence that the candidature of Brijraj Singh was sponsored by the Maharaja and the Rajmata of Gwalior.
The opinion expressed by the witness Dataram cannot do duty for evidence in support of the case of the appellant.
Sanwaldas Gupta and Kalyansingh Tyagi stated that they had requested the Maharaja to adopt Chhotey Lal as his candidate for election but they were told by the Maharaja that he had already decided to set up Brijral Singh as his candidate and that they also should actively support him.
The evidence of these witnesses was found to be 539 unreliable by the High Court.
In our judgment the High Court has rightly rejected their testimony.
It was said that in certain villages speeches were made by Brijraj Singh that he was set up as a candidate by the Rajmata of Gwalior.
But there is no reliable evidence in support of that case.
Reliance was strongly placed upon visits made by the Rajmata of Gwalior at villages Kelaras and Sabalgarh on Feb. 4 or Feb. 5, 1967, with a fleet of motor cars and about the speeches delivered in those villages declaring that Brijraj Singh was set up by her and that the voters should vote for him and strengthen her hands.
It is also said that the Maharaja visited Kelaras, Pahadgarh, Sujarma, Budhreta, Kulhouli, Sabalgarh, Jhunpura and Narhela on Feb. 11 or 12, 1967 in a helicopter and addressed meetings in those villages and in Ms speeches declared that Brijraj Singh was sponsored as a candidate by him and his mother and the voters should vote for him.
A large number of witnesses Keshrisingh, Narayan Sardar singh, Dhaniram, Phoolsingh, Kanhaiyalal, Mata Prasad, Dwarka Prasad, Sanwaldas Gupta, Kalyansingh Tyagi, besides the appellant, were examined in support of that case.
Brijraj Singh admitted that on Feb. 4 or 5, 1967, the Rajmata had visited the villages Kelaras and Sabalgarh and had addressed meetings in those villages.
But he denied that she declared in those meetings that he was set up as a candidate by her.
He further stated that the Maharaja had visited on Feb., 11 or 12, 1967, five villages, Kelaras, Pahadgarh, Budhreta, Jhundpura and Sabalgarh in a helicopter and addressed meetings in those villages.
But in none of those meetings did he declare that Brijraj Singh was a candidate set up by the Maharaja.
The witnesses examined on behalf of the appellant were, in view of their general tenor, found unreliable.
The learned Judge therefore stated his conclusion that on Feb. 4 or 5, 1967 the Rajmata of Gwalior visited two villages, Kelaras and Sabalgarh and addressed meetings there; and her son the Maharaja visited five villages, namely, Kelaras, Pahadgarh, Budhreta, Thundpura and Sabalgarh in a helicopter on or about Feb. II or 12, 1967 and addressed meetings there, but there was no reliable evidence to prove that Brijrai Singh was sponsored as a candidate by the Rajmata or the Maharaja of Gwalior.
In the view of the learned Judge the testimony of the witnesses on behalf of the appellant was "so thoroughly unreliable" that no reliance could be placed upon it.
He concluded, after considering the evidence of Budharam, that Brijraj Singh was an independent candidate and contested the election as an independent candidate, and even though meetings were addressed by the Maharaja and his mother the Rajmata they did not say that Brijraj Singh was set up as their candidate.
" We have carefully gone through the evidence of the witness and heard the arguments ad at the 540 Bar and see no reason to disagree with the view taken by the learned Judge.
The evidence of the witnesses that Brijraj Singh travelled with the Maharaja of Gwalior in his helicopter and visited several villages for his election campaign was also unreliable and was, in our judgment, rightly disbelieved.
The evidence shows that when the Maharaja visited the village Kelaras the only occupants in the helicopter were the Maharaja and the pilot and that Brijraj Singh was not in the helicopter when the Maharaja visited Kelaras.
Similarly about the village Jhundpura there is evidence that Brijraj Singh was not with the Maharaja in the helicopter.
About the village Budhreta the witness Phoolsingh deposed that Brijraj Singh was in the helicopter travelling with the Maharaja.
But from the cross examination of the witness it appears that his testimony was "worthless." The testimony of Phoolsingh was inconsistent with the testimony of Ramcharanlal Sarpanch of the village.
Similarly about the visit to Sabalgarh village two of the witnesses examined were Budhram and Sanwaldas Gupta.
Budhram said nothing about Brijraj Singh accompanying the Maharaja in the helicopter.
Sanwaldas Gupta supported the case of the appellant, but having regard to his interest in the appellant and the general unreliability of his testimony, he could not be believed.
About the village Pahadgarh, according to Mata Prasad examined on behalf of the appellant, Brijraj Singh was in the helicopter and the witness claimed that he had taken photographs of Brijraj Singh while he was in the helicopter.
We have seen the original photographs Exts.
P 11A, P 11B, P 12A, P 12B, P 13A and P 14A which are in respect of the journeys by the helicopter, the helicopter getting ready for take off, of the meetings addressed by the Maharaja and of the occupants in the helicopter.
Some of the photographs are so hazy and indistinct that it is impossible to identify any one in the group.
For instance the photograph Ext.
P 13A in which it is claimed that Brijraj Singh was in the helicopter shows merely a smudge and it is impossible to say that any one was sitting in the helicopter.
In the view of the learned Judge the witness Mata Prasad and Dwarka Prasad had been tutored to give false testimony that Brijraj Singh had accompanied the Maharaja at the time when the helicopter landed and also when it took off and on the consideration of the evidence it was established that Brijraj Singh was not with the Maharaja of Gwalior either at the time when the helicopter landed at the five villages Kelaras, Jhundpura, Budhreta, Sabalgarh and Pahadgarh or when the helicopter took off.
The learned Trial Judge disbelieved the witness Mata Prasad.
We have scrutinized the evidence of Mata Prasad and have seen the original photographs and have no doubt that the learned Judge was right in holding that the testimony of the witness Mata prasad was unreliable.
541 In the absence of any connection between the canvassing activities carried on by the Maharaja and the Rajmata with the candidature of Brijraj Singh, it is impossible to hold that any expenditure was incurred for Brijraj Singh which was liable to be included in the election expenses of the first respondent.
Under section 123(6) of the Representation of the People Act, 1951, the incurring or authorizing of expenditure in contravention of section 77 is a corrupt practice and section 77 provides, insofar as it is material "(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
(2) (3) The total of the said expenditure shall not exceed such amount as may be prescribed.
" Unless it is established that the expenditure was incurred in connection with the election by the candidate or by his, election agent or was authorised by him it is not liable to be included under section 77 of the Representation of the People Act.
We agree with the High Court that under section 77(1) only the expenditure incurred or authorised by the candidate himself or by his election agent is required to be included in the account or return of election expenses and thus expenses incurred by any other agent or person without any thing more need not be included in the account or return, as such incur ring of expenditure would be purely voluntary.
Assuming that expenditure was incurred by the Maharaja and the Rajmata for the purpose of canvassing votes against Raja Pancham Singh, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of Brijraj Singh or the expenditure was authorised by Brijraj Singh it was not liable to be included in the account of the election expenses.
We agree with the High Court that there is no evidence on the record to prove that Brijraj Singh actually spent any money on the helicopter used by the Maharaja in visiting the five villages and the two cars used by the Rajmata in visiting the two villages.
There is no evidence on the record direct or circumstantial to prove that Brijraj Singh had authorised the Maharaja and his mother to incur the expenditure on the helicopter and the two cars.
It is not necessary then to consider whether the expenditure incurred by the Maharaja and the Rajmata of Gwalior in respect of the helicopter and the motor cars can be said to be expenditure incurred by a political party for carrying on propaganda to 542 promote their views and their party interest and their policies and to educate the electoral constituency, and on that account is non liable to be included in the election expenses of the candidate.
Having carefully considered the evidence and having heard the arguments advanced at the Bar at considerable length, we are ,of the view that the appellant has failed to establish that Brijraj Singh was set up as a candidate by the Maharaja or the Rajmata of Gwalior as their nominee or that the Maharaja and the Rajmata had incurred any expenditure as an agent of Brijraj Singh or the expenditure incurred by the Maharaja and the Rajmata of Gwalior was authorized by Brijraj Singh and was liable to be included in his account of election expenses under section 77 of the Representation of the People Act, 1951.
The appeal fails and is dismissed with costs in favour of the first respondent.
The order of costs in favour of the 4th respondent passed by the High Court is set aside.
R.K.P.S. Appeal dismissed.

summary:
The first respondent was elected to the Madhya Pradesh Legislative Assembly in February 1967.
The appellant, a voter in the constituency, challenged his election by an election petition claiming that the nomination paper of one D was illegally rejected by the Returning Officer and that the respondent had committed several corrupt practices; it was also alleged that the Maharaja and Rajmata of Gwalior had helped the first respondent 's election in a number of ways and had in effect acted as his agents and had incurred considerable expenditure which exceeded the limits prescribed by the statute.
The High Court dismissed the petition and also dismissed an application made by the petitioner for amendment of the petition to include a new allegation on the ground that it was made after the expiry of the period prescribed for filing an election petition.
On appeal to this Court, HELD : Dismissing the appeal : (i) The High Court had rightly held that it could not exercise its power to permit amendment of a petition so as to allow new grounds or char es to be raised or the character of the petition to be so altered as to make it in substance a new petition, if a fresh petition on those allegations would be barred on the date of the proposed amendment.
Harish Chandra Bajpai vs Triloki Sinqh ; ; followed.
(ii) The mark made by the proposer on D 's nomination paper was not authenticated or attested by one of the designated officers as required under section 31(1) read with the definition of the expression "sign" in section 2(1) of the Representation of the People Act, 1951, and the provisions of r. 2(2) of the Conduct of Election Rules.
It was therefore rightly rejected by the Returning. Officer.
The requirement of section 33(1) of the Act that the nomination shall be signed by the candidate and by the proposer is mandatory.
Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be made it "must be authorised in the manner prescribed by the Rules.
" Attestation is not a mere technical or unsubstantial requirement within the meaning of section 36(4) of the Act and cannot be, dispensed with.
The attestation and the satisfaction must exist at the stage of presentation and omission of such an essential feature may not be subsequently validated at the stage of scrutiny any more than the omission of a candidate to sign at all could have been.
D F] 531 Rattan Anmol Singh and Another vs Atma Ram & Others ; ; referred to.
(iii) The High Court had rightly held on the evidence that none of the corrupt practices alleged was proved.
Unless it is established that expenditure was incurred in connection with the election by the candidate or by his election agent or was authorised by him it is not liable to be included under section 77 of the Representation of the People Act.
Expenses incurred by any other agent or person without anything more need not be included in the account or return, as such incurring of expenditure would be purely voluntary.
Assuming in the present case that expenditure was incurred by the Maharaja and the Rajmata of Gwalior for the purpose of canvassing votes against the principal candidate opposing the first respondent, in the absence of any evidence to show that the Maharaja and the Rajmata of Gwalior acted as election agents of the first respondent or the expenditure was authorised by him it was not liable to be included in the account of the election expenses.
[541 D F]