judgement:
Civil Appeal No. 716 of 1985.
From the Judgment and order dated 20.9.1984 of the Madhya Pradesh High Court in Misc.
Petition No. 307 of 1983.
K.K. Venugopal, S.K. Gambhir and Sanjay Sareen for the Appellants.
C.P. Mittal and C.K. Ratnaparkhi for the Respondent.
The Judgment of the Court was delivered by RAY, J.
This appeal on special leave is directed against the judgment and order passed by the High Court of Madhya Pradesh on 20.9.1984 in Civil Misc.
Petition No. 307 of 1983 allowing the writ petition and directing the respondents to reconnect and restore the electric supply by installing another meter.
The petitioner is a proprietor of Santosh Industries DII BC, Sector, Sanwar Road, Indore and she obtained service connection 893 No. 192352 of 30 H.P. Ioad for running the oil mill.
The Madhya Pradesh Electricity Board, the appellant No. 1, who is the licensee installed a meter with three phases for ascertaining the amount of energy supplied and consumed by the petitioner under the aforesaid service connection.
On February 18, 1983 the meter was burnt and this was brought to the notice of respondent No. 4, an Assistant Engineer of the Zone wherein the petitioner 's industry is situated.
On March 1, 1983 the petitioner was directed to deposit a sum of Rs.433 as price of the meter and Rs.44 for meter connection charges.
The sum was deposited on the same day but no meter was installed and the electric supply connection was not restored.
A letter was sent by the petitioner to the respondent No. 1 requesting to restore the electric supply by installation of another meter.
The State Electricity Board sent a letter dated 4.3.1983 calling upon the petitioner to pay a sum of Rs.12346.10 as per the supplementary bill dated 2.3.1983 sent alongwith said letter failing which the supply will be disconnected without notice.
The basis of the supplementary bill was that the meter was not recording actual energy supplied and consumed as it was found that one phase out of the three phases was not working and the meter was running two phases only.
The petitioners filed a writ petition No. 307 of 1983 challenging the said letter dated 4.3.1983 as well as the supplementary bill dated 2.3.1983 on the ground that the demand made on the basis of the supplementary bill was illegal.
A return was filed by the respondent to the effect that on 17.2.1983 the power connection was checked by an Assistant Engineer of the respondent Board and it was found that out of three phases one phase was not working.
The body seal of the meter was found to be intact.
It has also been stated therein that the petitioner was informed that the bill should be revised due to non working of one phase as found at the time of checking.
It has also been submitted that the petitioner got the meter burnt as the meter according to respondent did not burn ordinarily.
It was further alleged that body seal of the meter was broken.
This tampering of the meter was alleged to have been done between 17 to 19 of February, 1983 in order to avoid any liability.
The respondent further alleged that the petitioner 's husband refused to sign the panchnama which was prepared on the spot.
The High Court of Madhyra Pradesh after hearing the parties held that since the dispute relates to whether the meter is or is not 894 correct has to be decided by the Electrical Inspector and so long the A said dispute is not decided, the respondent No. 1, Madhya Pradesh Electricity Board was not competent to prepare the supplementary bill or revised bill as the said power is entrusted to the Electrical Inspector under sub section 6 of section 26 of the (Act 9 of 19 10).
It has been further held that the alleged notice calling upon the petitioner to deposit the amount of supplementary bill before seeking reconnection or restoration of electricity supply was also not in accordance with the provisions of the Act.
The letter dated 4.3.1983 issued by the respondent No. 1 as well as the supplementary bill of 2.3.1983 were quashed holding the same to be illegal.
The question of fraud was not even intimated to the respondent consumer.
It was raised for the first time in the return to the writ petition.
It is an after thought.
The respondents were directed to reconnect and restore the electricity supply by installing another meter.
Against this judgment and order the instant appeal on special leave has been filed.
It has been urged by Mr. Venugopal, learned counsel appearing on behalf of the appellant that the respondent committed fraud in breaking the body seal of the meter and in burning the same and as such the dispute does not attract the provisions of the section 26(6) of the said Act.
This dispute cannot be decided by the Electrical Inspector.
In support of the submission our attention was drawn to the said provisions of the Act.
It appears from the report of the Executive Engineer dated 17th February, 1983 that the body seal of the meter was intact at the time of inspection.
He only found that the meter which was installed was closed on one phase.
So the contention that there was fraud in breaking the body seal of the meter cannot be sustained.
Moreover, it has been found that the question of fraud was raised at no stage prior to the filing of the return in the High Court.
The said story of so called fraud was an after thought.
Mr. Venugopal after seeing the report of the Assistant Engineer frankly submitted that he would not press the ground of fraud.
In order to decide the question whether the impugned notice dated 4.3.1983 can be issued by appellant calling upon her to pay the amount of supplementary bill as well as whether supplementary bill can be prepared by the Board when there is a dispute relating to question whether the meter is a correct meter or not, it is necessary to consider the relevant provisions of sub sections (1) and (6) of section 26 of the said Act.
The said provisions are set out hereunder: "26(1): In the absence of an agreement to the contrary, 895 the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter: Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter." "26(6): Where any difference or dispute arises as to whether any meter referred to in sub section (1) is or is not correct, the matter shall be decided upon the application of the either party, by an Electrical Inspector; and where the meter has, in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector has been correct; but save as aforesaid, the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity; Provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub section, he shall give to the other party not less than seven days ' notice of his intention so to do.
" It is evident from the provisions of this section that a dispute as to whether any meter referred to in sub section (1) is or is not correct has to be decided by the Electrical Inspector upon application made by either of the parties.
It is for the Inspector to determine whether the meter is correct or not and in case the Inspector is of the opinion that the meter is not correct he shall estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply during a period not exceeding six months and direct the consumer to pay the same.
If there is an allegation of fraud committed by the consumer in tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in not registering the amount of energy supplied to the Consumer or the electrical quantity contained in the supply, such a dispute does not fall within the purview of sub section 6 of section 26.
Such a dispute regarding the commission 896 Of fraud in tampering with the meter and breaking the body seal is A outside the ambit of section 26(6) of the said Act.
An Electrical Inspector, has, therefore, no jurisdiction to decide such cases of fraud.
It is only the dispute as to whether the meter is/is not correct or it is inherently defective or faulty not recording correctly the electricity consumed, can be decided by the Electrical Inspector under the provisions of the said Act.
In the instant case it appears from the report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all, so there is undoubtedly a dispute as to whether the meter in question is a correct one or a faulty meter and this dispute has to be decided by the Electrical Inspector whose decision will be final.
It is also evident from the said provision that till the decision is made no supplementary bill can be prepared by the Board estimating the energy supplied to the consumer, as the Board is not empowered to do so by the said Act.
It is pertinent to refer in this connection to the observations made in the case of Gadag Betgiri, Municipal Borough, Gadag vs The Electrical lnspector.
Government Electrical Inspectorate, Government of Mysore, AIR as follows: "What the Inspector may decide under sub section 6 is whether or not the readings obtainable from the meter are accurate and whether the meter is faulty or mechanically defective, producing erroneous readings.
That is the limited adjudication which in my opinion, an Inspector or other authority functioning under sub section 6 may make under its provisions.
" x x x x x x x x x "In my opinion, the legislative intent underlying section 26(6) of the Act is similar.
The only question into which the Inspector or other authority functioning under that sub section might investigate is, whether the meter is a false meter capable of improper use or whether it registers correctly and accurately the quantity of electrical energy passing through it.
If in that sense, the meter installed by respondent 2 this case was a correct meter as it undoubtedly was and as it has 'been admitted to be, the fact that respondent 2, even if what the petitioner states is true, so manipulated the supply lines that more energy than what was consumed by the petitioner was allowed to pass through the 897 meter, would not render the meter which was otherwise correct, an incorrect meter.
" This decision was followed in M.P. Electricity Board, Jabalpur and another vs Chhanganlal, AIR 1981 M.P. 170 where it has been observed: "Where an electric meter is not registering correct consumption of energy not because there is any defect in the meter but because the wiring is defective Section 26(6) will not be attracted and the meter not being defective the question of arbitration by Electrical Inspector will not also arise .
" A contrary view was however taken in the case of Abdul Razak vs M.P. Electricity Board, where it has been held that: "About the fittings on the meter and tampering them in such a manner that the reading of the energy would not be correct, such a dispute in view of the language of section 26(6) read with Rule 3 of Schedule VI of the Electricity Act squarely falls within the jurisdiction of the Electrical Inspector.
We are however, unable to accept this contrary view as it is obvious from the provisions of section 26 sub section 6 of the said Act that dispute whether a meter is correct or faulty would come under the said provisions and not the dispute regarding tampering of meter.
In our view, the view taken about the scope of section 26(6) in the decisions cited above are correct.
In the instant case the dispute relates to whether the meter is correet one or it is faulty not recording the actual energy consumed in running the oil mill of the respondent.
So this dispute squarely falls within the provisions of the said Act and as such it has been rightly found by the High Court that it is the Electrical Inspector who alone is empowered to decide the dispute.
If the Electrical Inspector comes to the finding that the meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to be paid in respect of such energy consumed within a period not exceeding six months.
The appellant No. 1 is not competent pending the determination of this dispute by the Electrical Inspector to issue the impugned notice threatening 898 disconnection of supply of electricity for non payment of supplementary bill prepared and sent by it.
The Board is also not competent to prepare and send a supplementary bill in respect of energy consumed by the respondent from the one phase which stopped functioning and did not record any consumption of energy.
For the reasons, aforesaid we affirm the order of High Court and dismiss the appeal without costs.
N.P.V. Appeal dismissed.

dataset_name: IN-Abs

summary:
% An electricity meter with three phases installed by appellant No. 1 for running an oil mill owned by the respondent was burnt.
This was brought to the notice of appellant No. 4.
The respondent was directed to deposit a certain amount towards price of the meter and the meter connection charges, which the respondent complied, but the meter was not installed, nor electric supply connection restored.
The respondent requested appellant No. 1 to restore electric supply by installation of another meter.
However, appellant No. 1 sent a letter dated 4.3.1983 calling upon respondent to pay a sum of Rs.12,346.10 as per the attached supplementary bill dated 2.3.1983, prepared on the basis that the meter was not recording actual energy supplied and consumed, as it was running on two phases, since one of the three phases was not working, and threatening disconnection of supply without notice, for non payment.
The respondent filed a writ petition in the High Court challenging the legality of the aforesaid letter and the supplementary bill.
On behalf of the appellants, it was contended that when the power connection was checked by an Assistant Engineer of the Board, it was found that out of three phases, one phase was not working, and body seal of the meter was intact and, therefore, respondent was informed that the bill should be revised due to non working of one phase.
It was alleged that respondent got the meter burnt, since it did not burn ordinarily, and the body seal of the meter was broken, and the meter tampered with subsequently in order to avoid any liability.
The High Court held that since the dispute, was as to whether the meter was or was not correct it had to be decided by the Electrical 891 Inspector, under sub section (6) of section 26 of the and so long as it was not decided, appellant No. 1 was not competent to prepare the supplementary bill or revised bill, and quashed the letter dated 4.3.83 and supplementary bill of 2.3.83, as illegal.
In the appeal by special leave it was urged on behalf of the appellants that the respondent committed fraud in breaking the body seal of the meter and running the same, and as such, the dispute did not attract the provisions of section 26(6) of the Act and the dispute could not be decided by the Electrical Inspector.
Dismising the appeal, ^ HELD: Under sub section (6) of section 26 of the , it is only the dispute as to whether any meter referred to in sub section (1) is/is not correct or it is inherently defective or faulty, not recording correctly the electricity consumed, which can be decided by the Electrical Inspector.
[896A B] It is also evident from the said provision that till the decision is made, no supplementary bill can be prepared by the Board, estimating the energy supplied to the consumer, as the Board is not empowered by the Act to do so.
[896C D] A dispute regarding the commission of fraud in tampering with the meter and breaking the body seal is one outside the ambit of section 26(6) of the Act.
An Electrical Inspector has no jurisdiction to decide such cases of fraud.
[895H; 896A] In the instant case, it appears from the report of the Assistant Engineer of the State Electricity Board that one phase of the meter was not working at all; so, there is undoubtedly a dispute as to whether the meter in question is a correct one or a faulty one.
This dispute, therefore, squarely falls within the provisions of the Act, and it has been rightly held by the High Court that it is the Electrical Inspector, who alone is empowered to decide the dispute.
If the Electrical Inspector comes to the finding that the, meter is faulty and due to some defect it has not registered the actual consumption of electrical energy, then the Inspector will estimate the amount of energy consumed and will fix the amount to he paid in respect of such energy consumed within a period not exceeding six months.
The appellant No. 1 is not competent, pending the determination of this dispute by the Electrical Inspector, to issue the impugned notice threatening disconnection of supply of electricity 892 for non payment of supplementary bill prepared and sent by it.
The A Board is also not competent to prepare and send a supplementary bill in respect of energy consumed by the respondent from the one phase which stopped functioning and did not record any consumption of energy.
[896B C; 897F H; 898A B] It appears from the report of the Executive Engineer dated 17th February, 1983 that the body seal of the meter was intact at the time of inspection.
He only found that the meter which was installed was closed on one phase.
Therefore, there is no question of fraud in breaking the body seal of the meter.
The story of so called fraud was an after thought, and was not raised at any stage prior to the filing of the return in the High Court.
[894E F] Gadag Betgiri, Municipal Borough, Gadag vs The Electrical Inspector, Government Electrical Inspectorate, Government of Mysore, AIR and M. P. Electricity Board Jabalpur and another vs Chhanganlal, AIR 1981 M.P. 170 approved.
Abdul Razak vs M.P. Electricity Board, [1982] M.P.L.J. 22 overruled.


judgement:
ivil Miscellaneous 876 Petition No. 1483 of 1987.
(In Civil Appeal No. 573 of 1974).
From the Judgment and order dated 9.4.1973 of the Allahabad High Court in Special Appeal No. 537 of 1970.
P.K. Bajaj and S.K. Bagga for the Appellants.
G.S. Chatterjee for the Respondents.
The following order of the Court was delivered: O R D E R The appeal was listed on 7.5.1987 before a bench consisting of Hon 'ble Mr. Justice G.L. Oza and Hon 'ble Mr. Justice K.N. Singh.
The order recited "Heard learned counsel for the respondent for sufficient time.
No one appears for the appellants.
The appeal is, there fore, dismissed in default." This C.M.P. was subsequently filed for recalling the order on the ground that the learned counsel was busy in the Delhi High Court on that date.
It was further stated there "But when after arguing two cases viz. Company Petition No. 110 of 1983 Ishwar Singh and others vs Dharam Singh and others, (final hearing) and also other regular matter Suit No, 49 of 1976 A.C. Tamra vs Mercury Production (part heard) in the High Court of Delhi at New Delhi he (meaning thereby the counsel for the appellant) came to this Hon 'ble Court, he came to know that this appeal had reached for hearing and was dismissed for default".
This petition is signed not by the appellant but by M/s. Bagga & Co., Advocates for the appellant.
It is verified by an affidavit of one P.K. Bajaj who state that he had been instructed to appear and argue the appeal.
We are not sure as to who is making this application and whether the appellant is at all aware of these events.
We find no justification for recalling the order on the plea that the counsel was busy somewhere.
We were not inclined to act upon this kind of plea but on the basis that otherwise the appellant would suffer loss for no fault of his, we have decided to hear the counsel.
This practice should not be permitted in this Court any further.
On perusal of the judgment of the High Court we find no merit in this appeal.
By the impugned judgment of the High Court of Allahabad, writ petition was allowed and the order of the Deputy Director of Consolidation dated the 25th October, 1967 was quashed.
877 The learned Judge has recorded that the respondents herein A have been held to be in possession in 1958 when the case started under Section 145 of the Code of Criminal Procedure and their date of occupation could not be later than 8.5.1958 with the result that the sjx years ' period of limitation for a suit for their eviction under Section 209 of the Zamindari Abolition and Land Reforms Act would start to run from 1st July, 1958 and would expire on 30th June, 1964 i.e. before the consolidation operations commenced.
It was, however, contended on behalf of the appellants herein that there was a break in the possession of the respondents between 8.5.1958 and 29.1.1960, but it was obvious that though the land was in the custody of the criminal court during that period the court must be deemed to have been holding possession on behalf of the person eventually found to be entitled to possession.
We are of the opinion that the learned Judge was right in so holding.
It was argued that there was no justification for treating the respondents to be entitled for possession of the land as they had occupied the land as mere trespassers but it was found that they had matured their title by adverse possession and there could be no warrant for denying them the status of rightful owners.
The learned Judge did in the absence of any finding by a competent court negativing the respondents claim was of the opinion that they must be deemed to have been in persons entitled to possession of the disputed plots with the result that during the period between 8.5.1958 and 29.1.1960 the criminal court must be held to have been in possession of the land.
In that view of the metter there was no break in the possession of the respondents and they must be held to have been in continuous occupation at least from May, 1958.
In that view of the matter the other contentions urged before the High Court need not be noticed.
In that view of the matter the appeal fails and is dismissed accordingly.
No one appears for the respondent.
Therefore, there is no question of costs.
We, however, direct the Registry to transmit a copy of this order to the appellant directly at the costs of Advocate for the appellant.
S.L. Appeals dismissed.

summary:
The High Court allowed the writ petition and quashed the order of the Deputy Director of consolidation.
The appellants filed appeal in this Court against the order of the High Court.
The appeal came up for hearing on May 7, 1987, when it was dismissed for default of appearance, where after an application for restoration was filed on the ground that counsel for the appellants was busy in the High Court at the time of hearing of the appeal.
This Court found no justification for recalling its order, dismissing the appeal, but in view of the fact that the appellants would suffer for no fault of theirs, decided to hear the matter, directing that this practice should not be permitted in this Court any further.
Dismissing the appeal (on merits), the Court, ^ HELD: There is no merit in the appeal.
The High Court was right in holding that the respondents (concerned) were in possession of the land in 1958 when the case started under section 145 of the Cr.
P.C. and their date of occupation could not be later than 8.5.1958, so that the six years ' period of limitation for a suit for their eviction under section 209 of the Zamindari Abolition and Land Reforms Act would start running from July 1, 1958 and expire on June 30, 1964 i.e. before the consolidation operations commenced.
The appellants contended that there was a break in the possession of the respondents concerned between 8.5.1958 and 29.1.60, but during that period the land was in the custody of the Criminal Court which must be deemed to have been holding possession of the land on behalf of the person eventually found to be entitled to possession.
The respondents had matured their title by adverse possession and there could be no warrant for denying them the status of rightful owners.
There was no break in the possession of the respondents and they must be held to have been in continuous occupation at least from May, 1958.
1877A F]


judgement:
Civil Appeal No. 2321 of 1984.
From the Judgment and order dated 7.2.1984 of the Gujarat High Court in Special Civil Application No. 5985 of 1983.
Dr. Y.S. Chitale, P.H. Parekh, D. Chandrachud, Sanjay Bharati, S.N. Shelat and M.K.S. Menon for the Appellant.
B.K. Mehta and H.J. Jhaveri for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment of the High Court of Gujarat dated 7th February, 1984 setting aside the election of 28 teachers to the Court of the Gujarat University and the consequential order directing the University to hold fresh election for the 42 members constituency to the court.
Briefly the facts giving rise to this appeal are these.
The Gujarat University is constituted under the provisions of the Gujarat University Act, 1949.
Section 15 of the Act designates the "Court" as an authority of the University.
Section 16 provides for the constitution of the "Court", it consists of two classes of members, ex officio, and elected members.
Section 16(1) provides for election to the category of 'ordinary members of court '.
Clause (A) (VIII) of Section 16(1) lays down that 42 members shall be elected by teachers of affiliated colleges (excluding Deans of Faculties and Principals of Colleges) from amongst themselves in the manner specified in the statutes.
Sections 28 and 29 confer power on the Court to frame statutes in respect of matters which by the Act are required to be prescribed by the statutes.
Statute 10(3) of the University of Gujarat provides for election of 42 members to the court by teachers excluding Deans of Faculties and Principals of Colleges in the manner specified therein.
It further provides that 14 members shall be elected to the court by the teachers of Faculty of Arts and Education, out of which 10 members shall be elected by teachers having teaching experience of 10 years or more, while the remaining 4 shall be elected by the teachers having experience of less than 10 years.
Statute 10(3) further provides for election of GUJARAT UNIVERSITY vs N U. RAJGURU [SINGH, J.l 901 901 28 members to be elected by the teachers working in various other Faculties of the affiliated colleges of the University.
The term of the office of the elected members of the Court is five years.
The Registrar of the University by a notification dated August 25, 1983 notified programme for holding the election of 42 members by the teachers of affiliated colleges from various faculties.
According to the notification election was scheduled to be held on 9th October, 1983.
Three teachers, two of whom belonged to the Faculty of Education and the third belonging to the Faculty of Arts, challenged the holding of the election by means of a writ petition before the High Court (Writ Petition No. SCA No. 4682 of 1983) on the ground that in view of the separation of the Faculty of Education from the Faculty of Arts as a result of the amendment of Section 23 by the Amending Gujarat Act 10 of 1982, the allotment of 14 seats for the Faculty of Arts, and Education was illegal.
They contended that in view of the separation of the two Faculties separate seats should be allotted to the two Faculties for the election of teachers to the court.
Petitioners of that writ petition claimed interim relief for the stay of the election of 42 representatives of teachers to the Court.
The High Court, however, granted a limited interim relief, staying the process of election with regard to the fourteen seats of Arts and Education Faculties only, no stay order was issued with regard to holding of election of the remaining 28 seats.
In order to implement the interim order the University issued notification on 27th September 1983 notifying the stay of election to the 14 seats but it stated that the election with regard to remaining 28 seats in the teachers ' constituency shall be held as scheduled.
Election to the 28 seats from the teachers ' constituency of other Faculties was held on 9th October, 1983.
The respondent teachers of the University participated in the election, but before the declaration of the result of the election the respondents filed writ petition under Article 226 of the Constitution (SCA No. 5085 of 1983) seeking the relief of setting aside the election of 28 members and for the issue of a writ of mandamus directing the University to hold fresh election for all the Faculties in accordance with the system of proportional representation and single transferable vote.
Before the High Court respondents ' main grievance was that since the election to 14 seats from the teachers ' constituency of Faculty of Arts and Education was stayed by the High Court, elections to the remaining 28 seats could not validly be held on account of the system of proportional representation by single transferable vote.
The High Court accepted the contention raised on behalf of the respondents, set aside the election to 28 seats and directed the University to hold fresh election to the court for 42 seats 902 from amongst the teachers of various Faculties.
Aggrieved, the Gujarat University has preferred this appeal.
After hearing learned counsel for the parties at some length we are of the opinion that the High Court committed an error in entertaining the writ petition and interfering with the election.
Election to the membership of the court is regulated by the statutory provisions contained in the Act, and it also provides for the determination of election disputes.
Section 58 as substituted by the Gujarat Act 9 of 1983 which came into force on 25.1.1983 provides for the determination of disputes as to constitution of any University authority.
It reads as under: "58.
Disputes as to constitution of University authority or body Where any question arises as to (1) the interpretation of any provision of this Act, or of any Statute, ordinance, Regulation or Rules.
Or (2) whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University (a) it may be referred to the State Government if it relates to a matter specified in clause (1), and (b) it shall be referred to the State Government if (i) it relates to a matter specified in Clause (2), or (ii) if twenty members of the court so require irrespective of whether it relates to a matter specified in clause (1) or Clause (2), and the State Government shall after making such inquiry as it deems fit (including giving opportunity of being heard where necessary) decide the question and its decision shall be final.
" Under the aforesaid provision if a dispute arises with regard to the constitution of any of the authorities of the University, it should be referred to the State Government for determining the same.
It firstly provides that where any question arises as to the interpretation of any provision of the Act, or of any Statute, ordinance, Regulation or Rules, it may be referred to the State Government.
Secondly, it lays 903 down that if a question arises whether a person has been duly elected or appointed as, or is entitled to be or ceases to be entitled to be, a member of any authority or other body of the University, it shall be referred to the State Government.
Section 58(2)(a) provides that the dispute relating to interpretation of any provision of the Act or Statute ordinance, Regulation or Rules may be referred to the Government while Clause (b) of Sub section 2 of Section 58 contains a mandatory provision that if the dispute relates to the question whether a person has been duly elected or appointed to any authority of the University such a dispute shall be referred to the State Government.
There is no option or discretion.
If such a dispute arises, it has to be referred to the State Government for determining the same.
If 20 members of the Court raise a dispute relating to a matter specified in Clause (1) or Clause II of Section 58 it shall be referred to the State Government and thereupon the State government shall after making such enquiry as it may deem fit, decide the question.
The legislative intent is manifestly clear that any dispute relating to the matters covered by Section 58 should be referred to the State Government for its decision and such decision shall be final.
By enacting Section 58, the legislature has constituted a forum for the determination of disputes in respect of matters specified therein.
Since the "Court" is an authority of the University as declared by Section 15 of the Act, Section 58 provides an effective remedy for challenging the election of a member to the Court of the University.
Any person aggrieved by the election of any manner to the Court has right to challenge the same before the State Government by raising a dispute in accordance with Section 58.
In the instant case, the respondents could have availed the alternative remedy available to them before the State Government under Section 58 of the Act.
Instead they challenged the validity of the election before the High Court under Article 226 of the Constitution.
The respondents had challenged the validity of Statute 10(3) in their writ petition but they did not press that question before the High Court as stated in the judgment under appeal.
It is well settled that where a statute provides for election to an office, or an authority or institution and if it further provides a machinery or forum for determination of dispute arising out of election, the aggrieved person should pursue his remedy before the forum provided by the statute.
While considering an election dispute it must be kept in mind that the right to vote, contest or dispute election is neither a fundamental or common law right instead it is a statutory right regulated by the statutory provisions.
It is not permissible to invoke the jurisdiction of the High Court under Article 226 of the Constitu 904 tion by passing the machinery designated by the Act for determination A of the election dispute.
Ordinarily the remedy provided by the statute must be followed before the authority designated therein.
But there may be cases where exceptional or extraordinary circumstances may exist to justify by passing the alternative remedies.
In the instant case, there existed no circumstances justifying departure from the normal rule as even the challenge to the validity of statute 10 was not pressed by the respondents before the High Court.
We do not consider it necessary to burden the judgment by referring to decisions of this Court laying down the principle that where a statute provides a complete machinery for obtaining relief against the orders passed by the authorities a petitioner cannot be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution.
We would however refer to a decision of this Court in K.K. Shrivastava etc.
vs Bhupendra Kumar Jain and other, AIR 1977 SC 1703 where a defeated candidate at the election to the membership of the Bar Council of Madhya Pradesh moved the High Court under Article 226 of the Constitution challenging the validity of the election.
The High Court was conscious that equally efficacious remedy was available to the petitioner under the rules but even thereafter the High Court interfered on the ground that since the entire election was challenged an election petition could not be an appropriate remedy and the same could not be considered as an equally efficacious remedy.
This Court set aside the High Court 's order.
Krishna Iyer, J. speaking for the Court observed: "It is well settled law that while article 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power.
One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off.
This is more particularly so where the dispute relates to an election.
Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms.
While we need not in this case go to the extent of stating that if there are exceptional or extraordinary circumstances the Court should still refuse to entertain a writ petition it is perfectly clear that merely because the challenge is to a plurality of returns of elections, therefore a writ petition will lie, is a fallacious argument.
905 We have already referred to Section 58 which provides for the determination of dispute relating to election to the membership of any authority of the University.
Since the Court is an authority of the University, the dispute relating to the validity of the election of 28 members from the teachers ' constituency of various faculties of the affiliated colleges of the University could have been raised before the State Government.
The High Court committed error in entertaining the petition and setting aside the election of 28 members of the Court.
Learned counsel for the respondent urged that Section 58 does not confer any right on an aggrieved person to have a dispute relating to election referred to the State Government.
He placed reliance on the decision of a Division Bench of the High Court in Ramjibhai Ukabhai Parmar vs Manilal Purushottam Solanki and Another, AIR 1960 Gujarat 19.
In that case the High Court interpreted Section 58 of the Gujarat University Act as it existed prior to its amendment in 1983.
The High Court held that since a dispute could not be referred to the State Government unless it was raised by 20 members of the Court, alternative remedy could not be available to an aggrieved person.
Section 58 was substituted by the Gujarat Act 9 of 1983 which came into force with effect from 25.1.1983.
Under the amended Section a dispute raised by an aggrieved person relating to election of a member to an authority of the University shall be referred to the Government for adjudication.
Now it is not necessary that the dispute should be referred to the State Government only when 20 members of the Court so require.
On the other hand, reference shall be made to the State Government even if a dispute is raised by a single individual provided such dispute relates to a matter specified in Section 58(2) of the Act.
The decision in Ramjibhai Ukabhai Parmar 's case does not apply in view of the amendment of Section 58.
In the result we allow the appeal set aside the order of the High Court and dismiss the writ petition filed by the respondents.
There will be no order to costs.
S.L. Appeal allowed.

summary:
% The University of Gujarat held election of 28 members of the Court of the University out of 42 members, as the election with regard to the 14 seats had been stayed by an order of the High Court.
The respondents teachers filed a writ petition in the High Court for setting aside the election of the 28 members and holding fresh election for all the seats.
The High Court set aside the election to the 28 seats and directed the holding of fresh election for all the 42 seats.
Aggrieved by the decision of the High Court in the writ petition, the appellant appealed to this Court.
Allowing the appeal, the Court, ^ HELD: The High Court committed an error in entertaining the writ petition and interfering with the election.
Election to the membership of the court of the University and the determination of the disputes relating thereto, are regulated by the provisions of the Gujarat University Act, 1949.
Under section 58 as substituted by the Gujarat Act 9 of 1983.
Under the provisions of the Act, if a dispute arises with regard inter alia to the election of any member of any authority or other body of the University, it shall be referred to the State Government, which shall decide the matter and the decision of the Government shall be final.
It is well settled that where a statute provides for an election and a machinery or forum to determine any dispute arising out of that election, the aggrieved person should pursue his remedy before the forum provided by the statute.
It is not permissible to invoke the jurisdiction of the High Court by a writ petition, by passing the machinery provided by the Act for the determination of the election dispute.
The remedy provided by the statute must be followed except where exceptional, extraordinary circumstances exist to justify the by passing of the alternative remedies.
In the present case, there existed no circumstance, justifying departure from this rule and the High Court was not right in entertaining the writ petition.
[902B; 903B C, G H; 904B] 900 K.K Shrivastava etc.
vs Bhupendra Kumar Jain & Ors., AIR 1977 SC 1703; Ramjibhai Ukabhai Parmar vs Manilal Purushottam Solanki & Anr., , referred to.


judgement:
N: Criminal Appeal No. 318 of 1978.
From the Judgment and order dated 29th and 30th April, 1976 of the High Court of Bombay in Criminal Appeal No. 1044 of 1973 A.S. Bhasme for the Appellant.
909 Prem Malhotra for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, by special leave by the State of Maharashtra, arises out of and is directed against the judgment, dated, April 29 30, 1976 of the High Court of judicature at Bombay in Criminal Appeal No.1044/73 on its file setting aside respondent 's conviction and sentence dated, 21.7.73, under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act of 1947 ( 'Act ' for short) in Special Case No. 24/70 on the file of the Special Judge, Greater Bombay.
The special judge held respondent guilty of the charge of Criminal Misconduct in that respondent was in possession of property and pecuniary resources, disproportionate to his known sources of income for which he could not satisfactorily account; and sentenced respondent to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.20,000.
The High Court allowing respondent 's appeal before it acquitted him of the charge.
The State has come up in appeal.
At the relevant time, respondent Pollonji Darabshaw Daruwalla was an Appraiser in the customs department at Bombay.
He and several other customs officers were suspected of their complicity in certain offences, concerning export of stainless steel ware to Hongkong.
On 9.12.1968, Police inspector (PW 34), armed with a warrant in this behalf searched the residential premises of the respondent in the course of the investigation of that case.
Though nothing incriminatory for purpose of that investigation was discovered; however, the search revealed respondent 's possession of furniture, refrigerator, tape recorder and cash of Rs.7593 which were susceptible of the suspicion of the commission of an offence under Section 5(1)(e) read with Section 5(2) of the 'Act '.
PW 34, accordingly, obtained the requisite authorisation to investigate into this offence and after investigation, sought and obtained on 26.
10.1970 sanction to prosecute respondent.
On 2.11.1970, the charge sheet was placed against the respondent for an offence under Section 5(1)(a) read with 5(2) of the Act.
The substance of the charge was that respondent, as a publicservant, between the period of 1.4.1958 and 31.12.1968 was in 910 possession of pecuniary resources and property of the value of Rs.2,62,122.15; that his known sources of income during the said period was Rs.85,114.12; that, therefore, the property possessed by the respondent was disproportionate to his known sources of income to the extent of Rs.1,71,647 for which respondent could not satisfactorily account and that, thereby respondent was guilty of Criminal Misconduct within the meaning of and punishable under Section 5(2) of the Act.
Respondent having pleaded not guilty, the matter went for trial .
In support of the charge, the prosecution examined 34 witnesses.
A number of documents pertaining to the respondent 's investments in Banks; in company deposits; and on shares both in his own name and jointly with his wife, as also documents pertaining to the salary and emoluments of the respondent between 1.4.1958 and 31.12.1968 were brought on record and marked in evidence.
In the course of the trial, for the most part, respondent was not defended by a counsel.
Many of the prosecution witnesses were not cross examined.
It was only at a late stage of the proceedings that an advocate appeared for him.
From what is disclosed by the trend of the answers, in the course of the examination under Section 342 Cr. P.C., the possession of the assets in the form of investments in Fixed Deposits with Banks and with companies and on shares in the joint name of the respondent and his wife was not disputed.
The defence was that respondent was in possession of substantial assets even anterior to 1.4.1958 and that respondent had also derived substantial assets from his wife 's side.
His wife was stated to be the only daughter of a practising doctor.
Respondent also claimed that he and his daughter were in receipt of gifts from his mother.
The trial court went through the somewhat complex exercise of computing and collating the particulars of the investments, made by the respondent in his own name and in the name of his wife from time to time over the years.
In Chart No. I, appended to and forming part of its judgment the trial court formulated what, according to it, were the results of the collation of these particulars as to the receipts and investments for the various years.
In Chart No. II, the pay and emoluments which respondent was in receipt of, for and during the relevant period were set out.
In Chart No. III, the trial court has set out the amounts of interest and dividends received by the respondent during the relevant years.
911 6.
The substance of the outcome of the exercise by the trial, in A relation to the total income of the respondent for the relevant period was referred to and summarized by the High Court thus: "The total of all these items aggregate of Rs.169736.69.
It is urged on behalf of the State that out of this, estimated expense of Rs.31,114.47 should be deducted because they were not available to the respondent to be accumulated as his assets.
So the total sources available to him were Rs.1,38,621.83.
" Referring to the total assets acquired by the respondent during the relevant period and the extent of the disproportion, the High Court noticed the results of the findings of the trial court thus: "It was urged that the total assets being Rs.2,21,606.45, the assets of worth Rs.827984.23 were in excess".
We have heard Shri Bhasme, leamed counsel in support of the appeal and Shri U.R. Lalit, who was requested to assist the court as Amicus Curiae in view of the circumstance that respondent remained unrepresented.
Learned Counsel have taken us through the judgment under appeal and the evidence on record on the material points.
From what we can gather from the somewhat spread out reasoning of the High Court, the considerations that principally weighed with the High Court in reaching such conclusions as it did on the material points in controversy before it, admit of being formulated thus.
(a) That the selection of the particular period (from 1.4.1958 to 3 1.12.1968) for the ascertainment and determination of disproportionate assets is itself arbitrary and caused prejudice to the respondent; The period of reckoning should have been from 1946 to 1968 as that would have given a fuller and a more complete picture; (b) That it was erroneous to proceed as was done by the trial H 912 court on the premise that respondent was the beneficial owner of the joint bank investments where his name was not the first name; That prosecution had failed to establish and it was erroneous on the part of the trial court to have assumed B that in respect of the deposits in which the wife 's name occurred first and respondent 's name second, the respondent alone was the beneficial owner (c) That the deduction of Rs.41,839.17 as the carried forward assets from the period prior to 1.4.1958 was inadequate and it should have been Rs.56,822.
The effect of this would be that the whole of the investments made in the first year of the accounting period viz, 1954, would be absorbed by the higher assets so carriedforward; (d) That a sum of Rs.6,000 which was the value of the probable gift from the mother and Rs.1,275 representing the brokerage on the fixed deposits had to be given credit to the respondent on the resources side; (e) That from the bank account of Veera Bai, the wife of the respondent, a sum of Rs.82,827.99 had been with drawn during the period between 1.4.1958 and 31.12.1968 and that only Rs.31,010.12 had been given credit to on the plus side in the accounting and that the balance of Rs.51,815.87 should be treated as belonging to Veera Bai in joint investments and should, therefore be excluded from the value of respondent 's assets.
The High Court, on the basis of these re calculations, held that in all a sum of Rs.77,215,03 could not be treated as the assets of the respondent and had to be deducted from a sum of Rs.2,21,66.45.
In other words, the High Court held that the value of the assets of Rs.82,984.23 said to be in excess of and disproportionate to the known sources of income should be reduced by Rs.77,215.03.
Concluding, the High Court observed: "32.
Now comes the question, whether a man after serving for 22 years from 1946 to 1968, on the prosecution own 913 showing, is able to save Rs. 1,38,822 can it be said that the assets of Rs. 1,41,495 as observed by us, are disproportionate assets as required under Section 5(1)(e) of the Act.
In this connection, in our opinion, the difference is so negligible that it cannot be said to be disproportionate".
Shri Bhasme for the appellant seriously assailed the reasoning of and the conclusion reached by the High Court on these points and more particularly on the points noticed at (a) and (b).
Learned counsel submitted that the view of the High Court on points (a) & (b) was manifestly erroneous and the High Court misdirected itself in law on these propositions.
We are inclined to agree with the learned counsel on the submission on points (a) and (b).
In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant.
There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under Section 5(1)(e) of the 'Act '.
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests.
However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of by the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate.
In the facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture.
The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion.
On this aspect, the High Court observed: ". 20.
But at the same time, it has also to be remembered that the prosecution, without showing any reason has selected to begin the calculation of the assets from 1958.
I do not see any substantial reason in the selection of the year 1958.
It is on record that from 1954, the accused had 914 become the Appraiser.
It is also on record that from year 1958 the accused had separated from his brother mother after the child was born to his wife.
When I a the Public Prosecutor for the reason for selecting the period of 1958 to 1968, he said that it was done because the prosecution could lead evidence so as to show that the investment during these 10 years would be disproportionate of assets compared to the moneys received.
Looking to the logic of the prosecution, if amounts invested upto 1958 excluded by themselves, I see considerable force in Vashi 's arguments that the first year of 1958 should also be considered along with the previous years.
There is no charm in selecting the year.
I think that the prosecution would have been in a better position instead of selecting the period of 1958 to 1968, it had taken the entire period service from 1946 to 1968 and given credit of the amount that he has earned against all the assets that he had collected.
It is therefore difficult to understand why the prosecution has chosen the period from 1958 to 1968 ". 20.
We have carefully considered this evidence of the Police Inspector but still we are not convinced about the selected of the period.
We feel that the prosecution by selecting the check period of 10 years, when the accused had put in service from 1946 to 1968, i.e. for 22 years has done something whereby the chances of prejudicing the case of the accused are there 11.
The assumptions implicit in the above observation of the High Court suffer from a basic fallacy.
It is for the prosecution to choose what according to it, is the period which having regard to the acquisitive activities of the public servant in amassing wealth, characterise and is late that period for special scrutiny.
It is always open to the public servant to satisfactorily account for the apparently disproportionate nature of his possession.
Once the prosecution establishes the essential ingredients of the offence of Criminal Misconduct by proving, by the standard of criminal evidence, that the publicservant is, or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence.
It then becomes necessary for the public servant to satis 915 factorily account for the possession of such properties and pecuniary resources.
It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant.
Indeed in State of Maharashtra vs Wasudeo Ramchandra, A.I.R. 1981 SC 1189 this Court characterised the approach of that kind made by the High Court as erroneous.
It was observed: " .
The High Court, therefore, was in error in holding that a public servant charged for having disproportionate assets in his possession for which he cannot satisfactorily account, cannot be convicted of an offence under Section 5(2) read with Sections 5(1)(e) of the Act unless the prosecution disproves all possible sources of income In the present case, the selection of a ten year period between 1.4.1958 and 31.12.1968 cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution.
Equally erroneous, in the view of the High Court on the proposition noticed at point (b).
The assumption that in all jointdeposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest is erroneous.
The matter is principally guided by the terms of the agreement, inter se, between the joint depositors.
If, however, the terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.
There is no such material before the court in this case.
Indeed, the answers of the respondent to the specific questions under Section 342 Cr.
P.C. pertaining to the nature of the deposits and the suggestion implicit in the questions as to the beneficial ownership in the respondent in the deposits do not support the view of the High Court and lend credence to any doubts in the matter.
Respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under Section 342.
The view of the High Court on point (b) is clearly unsustainable.
However, these errors of approach and of assumption and inference in the judgment under appeal do not, by themselves, detract from the conclusion reached by the High Court that, in the ultimate analysis, the prosecution has not established the case against respondent beyond reasonable doubt.
916 The discussion of and the conclusion reached on the contents and parts (c) to (e) by the High Court tends to show that the disproportion of the assets in relation to the known source of income is such that respondent should be given the benefit of doubt though however, on a consideration of the matter, if cannot be said that there is no disproportion or even a sizeable disproportion.
For instance, Shri Bhasme is right in his contention that the acceptance by the High Court of the case of the alleged gift from the mother is wholly unsupported by the evidence.
There are also other possible errors in the calculations in regard to point(e).
The finding becomes inescapable that the assets were in excess on the known sources of income.
But on the question whether the extent of the disproportion is such as to justify a conviction for criminal misconduct under Section 5(1)(e) read with Section 5(2), we think, we should not, in the circumstanees of the ease, interfere with the verdict of the High Court as, in our view, the difference would be considerably reduced in the light of the factors pointed out by the High Court.
A somewhat liberal view requires to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for purpose of Section 5(1)(e) of the Act.
We think that the respondent should have the benefit of doubt.
The appeal is accordingly dismissed.
S.L. Appeal dismissed.

summary:
% The respondent, Pollonji Darabshaw Daruwalla, was an appraiser in the Customs Department.
The police searched his residential premises on a suspicion of his complicity in certain offences concerning the export of the Stainless Steel Ware, in the course of the investigation of that case.
Though nothing incriminatory for the purpose of that investigation was discovered, the search revealed that the respondent was in possession of property and pecuniary resources, disproportionate to his known sources of income between 1.4.1958 and 31.12.1968, for which he could not satisfactorily account for.
This led to the suspicion of the commission by the respondent of an offence under the Prevention of Corruption Act, 1947, and the respondent was charge sheeted for an offence under section 5(1)(e), read with section S(2) of the Act.
In support of the charge, a number of documents pertaining to the respondent 's investments in the banks, in the company deposits and on shares, both in his own name and jointly with his wife, as also the documents pertaining to the salary and emoluments of the respondent between 1.4.1958 and 31.12.1968 were brought on record in evidence.
The defence was that the respondent was in possession of substantial assets even anterior to 1.4.1958.
The Special Judge held the respondent guilty and sentenced him to rigorous imprisonment and fine.
The respondent filed an appeal before the High Court against the Judgment and order of the Special Judge.
The High Court allowed the appeal and acquitted the respondent.
The State appealed to this Court by special leave against the decision of the High Court.
Dismissing the appeal, the Court, ^ HELD: In order to establish that a public servant is in possession of pecuniary resources and property disproportionate to his known 907 sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant.
There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under section S(1)(e) of the Act.
The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests.
However, the period must be such as to enable a true and comprehensive picture of the known sources of the income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate.
A ten year period cannot be said to be incapable of yielding such a true and comprehensive picture.
The assets spilling over from the anterior period, if their existence is probablised, would, of course, have to be given credit to on the income side and would go to reduce the extent and quantum of the disproportion.
It is for the prosecution to choose what is the period, having regard to the acquisitive activities of the public servant, and characterise and isolate that period for special scrutiny.
In this case, the selection of a ten year period between 1.4.1958 and 31.12.1968, cannot, by reason alone of the choice of the period, be said to detract from the maintainability of the prosecution, and the view of the High Court on these points is erroneous.
[913C F; 914E; 915C D] Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, that the public servant is, or was, at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution has discharged its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence.
It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources.
It is erroneous to predicate that the prosecution should also disprove the existence of the possible source of the public servant.
[914G H; 915A B] Equally erroneous and unsustainable is the view of the High Court on the proposition that the respondent was not the beneficial owner in the joint bank investments where the respondent 's name was not the first name but his wife 's name occurred first.
The assumption that in all the joint deposits, the depositor first named alone is the beneficial owner and the depositor named second has no such beneficial interest, is erroneous.
The matter is principally guided by the terms of the agreement, inter se between the joint depositors.
If, however, the 908 terms of the acceptance of the deposit by the depositee stipulate that the name of the beneficial owner shall alone be entered first, then the presumptive beneficial interest in favour of the first depositor might be assumed.
There was no such material before the Court in the case.
The respondent virtually acknowledged his beneficial interest in the deposits in the course of his examination under section 342, Cr.
P.C. [915D G] However, though there are errors of approach and of assumption and inference in the judgment under appeal, they did not by themselves detract from the conclusion reached by the High Court that in the ultimate analysis, the prosecution had not established the case against the respondent beyond reasonable doubt.
The conclusion reached by the High Court tends to show that the disproportion of the assets in relation to the known sources of income was such as to entitle the respondent to be given the benefit of doubt, though, however, on a consideration of the matter, it could not be said that there was no disproportion or even a sizeable disproportion; for instance, the acceptance by the High Court of the case of receipt by the respondent of the alleged gift from his mother, was wholly unsupported by the evidence.
There were also other possible errors in the calculations in regard to the carried forward assets, etc.
The finding became inescapable that the assets were in excess of the known sources of income.
But on the question whether the extent of the disproportion was such as to justify a conviction for criminal misconduct under section 5(l)(e) read with section 5(2), the Court thought it should not, in the circumstances of the case, interfere with the verdict of the High Court, as, in the Court 's view, the difference would be considerably reduced in the light of the factors pointed out by the High Court.
A somewhat liberal view was required to be taken of what proportion of assets in excess of the known sources of income constitutes "disproportion" for the purposes of section 5(1)(e) of the Act.
[915G H; 916A D] The respondent should have the benefit of doubt.
State of Maharashtra vs Wasudeo Ramachandra, A.I.R. 1989 S.C 1189, referred to.
[916E]


judgement:
Civil Appeal No. 2849 of 1987.
(In Special Leave Petition (Civil) No. 12198 of 1987).
From the Judgment and order dated 26.9.1987 of the Bombay High Court in W.P. No. 1459 of 1987.
882 G. Ramaswamy, Additional Solicitor General and Ms. A Subhashini for the Petitioner.
Dr. Y.S. Chitale, A.M. Khanwilkar, A.S. Bhasme and Mrs. Jayshree Wad for the Respondents.
Dr. N.M. Ghatate and S.V. Deshpande for the Intervenor.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
We are very much disturbed by the manner in which the High Court of Bombay (Aurangabad Bench) has interfered not once but twice with the process of election which was being held under the provisions of the Representation of the People Act, 1951 (hereinafter referred to be 'the Act ') to the Legislative Council of the State of Maharashtra from the Osmanabad cum Latur cum Beed Local Authorities Constituency.
The Governor of Maharashtra by a notification dated 18th September, 1987 issued under section 16 of the Act called upon six local authorities constituencies in the State of Maharashtra to elect one member from each of the said constituencies in order to fill the vacancies in the Maharashtra Legislative Council which had been caused by the retirement of the members representing the said constituencies on the expiration of their terms of office.
On the same day the Election Commission of India, the appellant herein, issued a notification under section 30 of the Act fixing the calendar of events for the purpose of holding the elections accordingly.
Osmanabad cum Latur cum Beed Local Authorities constituency was one of the six constituencies referred to above.
According to the notification issued by the Election Commission the last date for making nominations was 25th September, 1987.
p The date for the scrutiny of nominations was 26th September, 1987.
The last date for the withdrawal of candidatures was 28th September, 1987 and the date on which the Poll, if necessary, was to be taken was 18th October, 1987.
The entire election process had to be completed within 21st October, 1987.
Respondents 1 to 5 Shivaji son of Vishwanath Gangane, Prof. K.S. Shinde, Prabhakar son of Bapurao Pudale, Shankarrao Madhavrao Mane and Ashok son of Rangnath Magar filed a writ petition under Article 226 of the Constitution in Writ Petition No. 1459 of 1987 on September 26, 1987 before the High Court of Bombay (Aurangabad Bench) challenging the validity of the notification issued by the Election Commission on 18th September, 1987 on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and the Zilla Parishad of Latur district which 883 were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and therefore the members of the said Zilla Parishads who were entitled to take part in the said elections had been deprived of their right to participate in the said election.
Along with the writ petition an application was made for an interim order and the counsel who moved the said application just prayed for the postponement of the last date for withdrawal of candidatures from 28th September, 1987 to Ist October, 1987.
It is not clear why such a prayer was made.
The learned Single Judge before whom the writ petition came up for consideration however passed an order on September 26, 1987 issuing notice on the writ petition and passing an interim order ex parte directing the postponement of the last date of withdrawal of candidatures from 28th September, 1987 to October 1, 1987.
A Division Bench of the High Court which was presided over by the learned Single Judge who had issued the interim order earlier heard the writ petition on October 1, 1987 and dismissed it by the order passed on the same day.
In the course of its order the Division Bench relied on the decision in Inderjit Barua & Ors vs Election Commission of India & Ors., [1985] Supp.
3 S.C.R. 225=AIR 1984 S.C. 1911 which had laid down that the validity of an election process under the Act could be challenged only in an election petition filed under the Act as provided by Article 329(b) of the Constitution.
While dismissing the writ petition the High Court did not make any observation as to the effect of the interin order passed by it earlier on the election programme.
18 candidates withdrew their candidatures by Ist of October, 1987 which was the last date for withdrawal of candidatures as per the interim order passed by the High Court.
In the circumstances the Election Commission considered it fair to postpone the date of poll from 18th October, 1987 (as originally notified) to some later date in order to secure compliance with the spirit underlying section 30(d) of the Act which contemplated an interval of 20 days between the last date for withdrawal of candidatures and the date of poll.
Ordinarily a week 's postponement would have been in the opinion of the Election Commission adequate in the present case but as the postponement of one week would have led to the date of poll falling during the festival season the Election Commission revised the date of poll as Ist November, 1987 and notified the change of the date of poll in the official Gazette on 15th October, 1987.
The Election Commission also notified under the same notification the date before which the election had to be completed as 4th November, 1987 instead of 2 1st October, 1987 which was the date fixed for that purpose originally.
But on 16.
l0.1987 respondent 1 to 5 filed a Review Petition in Civil Application for Review No. 2035 of 1987 before the High 884 Court seeking a direction to the effect that the election programme A might be renotified on the ground that clear 20 day 's interval was not there between the last date of withdrawal of candidatures and the date of poll which had been originally fixed as 18th October, 1987.
The said Review Petition came up for consideration on the 16th October, 1987 before the very same Bench which had dismissed the Writ Petition earlier on Ist October, 1987.
On that occasion it is alleged that it was brought to the notice of the High Court by the learned counsel appearing for the State of Maharashtra, Collector, Osmanabad and the Returning officer for the osmanabad Latur Beed Local Authority Constituency and the District Returning officer for Maharashtra Legislative Council Constituency No. 26, osmanabad Latur Beed Local Authority Constituency, osmanabad, that the Election Commission had on 15.
l0.1987 already postponed the date of poll from 18th October, 1987 to the Ist November, 1987.
Despite the above submission made by the said counsel the High Court was pleased to make the following order on 16th October, 1987.
"Notice before admission.
In this matter, the election fixed for the 18th October, 1987 will have to be stayed till we pass further order on 26th October, 1987, looking to the mandatory provision of section 30 of the Representation of the People Act, S.O. till 26 10 1987.
" The case was adjourned to October 26, 1987 for hearing.
Aggrieved by the interim order passed in the writ petition postponing the last date of withdrawal of the candidatures from 28th September, 1987 to October 1, 1987 and by the interim order passed on October 16, 1987 in the Review Petition the Election Commission has filed this appeal by special leave.
The Special Leave Petition filed in the above case came up for hearing on October 27, 1987.
On that date this Court directed issue of notice on the Special Leave Petition and also ordered stay of the operation of the stay order which had been passed by the High Court.
The Election Commission was permitted to proceed with the election process.
The contesting respondents took notice of the petition in the Court through their counsel.
The case was adjourned to 30th October, 1987 for final hearing.
On 30th October, 1987 the case was heard and the Court passed the following order: "Special leave granted.
The appeal is heard.
We allow the appeal, set aside the order dated 16.
l0.1987 pas 885 sed by the High Court of Bombay at Aurangabad and dismiss the Review Petition No. 2035 of 1987 in writ petition No. 1459 of 1987.
The Election Commission shall proceed with the election in accordance with law.
Respondent Nos. 1 to 5 shall pay Rs.5000 by way of costs to the appellant.
Reasons will follow.
" The appeal was accordingly allowed with costs.
The following are the reasons for allowing the appeal.
Part XV of the Constitution contains the provisions relating to the elections.
Article 324(1) of the Constitution vests the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and the Vice President held under the Constitution in the Election Commission.
Article 327 of the Constitution provides that subject to the provisions of the Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of each House or Houses.
In exercise of the power granted under Article 327 of the Constitution Parliament has enacted the Act to provide for the conduct of elections to the either House of Parliament, to the House or either House of the Legislature of each State, qualifications and disqualifications for membership of those Houses, corrupt practices and other offences in connection with such elections and the decision of doubts and disputes arising out of or in connection with the such elections.
Article 329(b) of the Constitution provides that notwithstanding anything contained in the Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
The disputes regarding the elections have to be settled in accordance with the provisions contained in Part VI of the Act.
Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act.
The expression 'election ' is defined by section 2(d) of the Act as an election to fill a seat or seats in either House of Parlia 886 ment or in the House or either House of the Legislature of a State A other than the State of Jammu and Kashmir.
Thus a dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act.
Section 80A of the Act provides that the Court having jurisdiction to try an election petition shall be the High Court.
An election petition has to be presented in accordance with section 81 of the Act.
In view of the non obstante clause contained in Article 329 of the Constitution the power of the High Court to entertain a petition questioning an election on whatever grounds under Article 226 of the Constitution is taken away.
The word 'election ' has by long usage in connection with the process of selection of proper representatives in democratic institutions acquired both a wide and a narrow meaning.
In the narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling, or a particular candidate being returned unopposed when there is no poll.
In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which Article 329(b) occurs.
In N.P. Ponnuswami vs Returning officer, Namakkal Constituency and Ors, ; this Court held that the scheme of Part XV of the Constitution and the Act seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special Tribunal and should not be brought up at an intermediate stage before any court.
Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being any dispute relating to the pre polling stage.
In the above decision this Court ruled that having regard to the important functions which the legislatures have to perform in democratic countries, it had always been recognised to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections were over so that the election proceedings might not be unduly retarded or protracted.
Hence even if there was any ground relating to the noncompliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned, the person interested in questioning the elections has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate within fortyfive days from the date of election of the returned candidate but not earlier than the date of election.
This view has been reaffirmed by 887 this Court in Lakshmi Charan Sen & Ors.
vs A.K.M. Hassan Uzzaman & Ors.
etc., [1985] Supp. 1 S.C.R. 493 and in Inderjit Barua & Ors etc.
vs Election Commission of India & Ors.
(supra).
Realising the effect of Article 329 (b) of the Constitution the High Court even though it had by oversight issued an interim order in writ Petition No. 1459 of 1987 on 26.9.1987 postponing the last date for withdrawal of candidatures to Ist October, 1987 dismissed the petition by its judgment dated 1.10.1987.
The relevant part of its judgment reads as follows: "The challenge must fail mainly on two grounds.
First on the ground that the stage has reached of withdrawals of nominations for the said election which was infact, fixed on 30th but has been postponed because of our orders as on today.
Article 329(b) bars every challenge to any election including all the election process which commences from the date of notification in the official Gazette, except by way of election petition under the Representation of People Act.
Mr. Chapalgaonkar, appearing for the respondent has relied upon a decision reported in AIR 1984 Supreme Court page 1911 to support this plea that all election including every election process must be challenged only by way of election petition under the Representation of the People Act.
" Having thus dismissed the petition on 1. l0.1987 the Court committed a serious error in entertaining a Review Petition in the very same writ petition on 16.1().1987 and passing an order staying election which had been earlier fixed for 18.
l0.1987 till further orders "looking to the mandatory provisions of section 30 of the Representation of the People Act".
The High Court tailed to recall to its mind that it was not its concern under Article '26 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election If there was any such error committed in the course of the election process the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill & Anr.
vs The Chief Election Commissioner, New Delhi & Ors.
and to see that the election process was completed in a fair manner.
888 It is true that the Zilla Parishads of Osmanabad and the Latur districts had not been constituted and administrators were functioning in their place.
The total voters in the local authorities constituency in question were 577 out.
Of which 533 were members of Municipal Councils and 44 were members of the Zilla Parishads.
Even if the Zilla Parishads of osmanabad and Latur districts had been in existence the total number of their members would not have exceeded above 110.
As such more than 3/4th of the voters entitled to vote in the constituency in question were in existence.
The Election Commission had a guideline that if at least 75% of the local authorities in a local authority constituency were functioning and again at least 75% of the voters in the total electorate were available, then the electorate should be asked to elect their representative to the Legislative Council.
In the instant case 75% of the total electorate (including the number of members of the Zilla Parishads of Osmanabad and Latur districts who would have been voters had the said Zilla Parishad been constituted) were entitled to participate.
Since the existing position in the constituency satisfied the guideline prescribed by the Election Commission, the election from the said constituency had been ordered.
It was only on account of the interim order passed by the High Court on 26.9.1987 postponing last date for withdrawal of candidatures from 28.9.1987 to 1.10.1987 and not on account of any mistake committed by the Election Commission the interval between the last date of withdrawal and the date of poll which had been originally fixed as 18.10.1987 fell short of the period of twenty days prescribed by clause (d) of section 30 of the Act.
After the judgment of the High Court was pronounced dismissing the writ petition on 1.
10.1987 in order to ensure that there was an interval of 20 days between the last date for the withdrawal of candidatures and the date of poll, the Election Commission had on its own postponed the date of poll to 1.11.1987 and had published a notification in the official Gazette of the State Government even before the Court passed another interim order on 16.10.1987 in the Review Petition.
All these changes in the calendar of events of the election in question came about because of the earlier interim order of the High Court.
It has to be stated here that it is not the law that every non compliance with the provisions of the Act or of the Constitution will vitiate an election.
It is only when it is shown that the result of the election was materially affected by such non compliance the High Court would have jurisdiction to set aside an election in accordance with section 100(1)(d)(iv) of the Act.
The High Court was in error in thinking that it alone had the exclusive power to protect the democracy.
The success of democracy is dependent upon the cooperation of the Legislature, the Executive, the Judiciary, the Election Commission, the press the 889 political parties and above all the citizenry and each of them discharging the duties assigned to it.
Every member of the body politic should play his legitimate role for the success of the democracy.
Some times the success of democracy also depends upon the observance of restraint on the part of the constitutional functionaries.
We are constrained to observe that the High Court grievously erred in entertaining the review petition and in passing an interim order on 16.
10.1987.
We are of the view that both the interim orders the one passed on 26.9.1987 postponing the last date of withdrawal of candidatures from 28.9.1987 to 1.10.1987 and the other passed on 16.10.1987 were without jurisdiction.
There was hardly any justification for entertaining the review petition in the circumstances of this case and for issuing notice thereon particularly after the High Court.
itself had rejected the writ petition on the ground that it had no jurisdiction to interfere with the process of election at that stage in view of the provisions of Article 329(b) of the Constitution.
The review petition filed before the High Court was liable to be dismissed.
We directed respondents 1 to 5 to pay Rs.5,000 to the appellant by way of costs since the entire proceedings in the High Court amounted to a clear abuse of the process of law.
These are the reasons for our order passed on 30.
10.1987 allowing the appeal.
S.L. Appeal allowed.

summary:
% The Governor of Maharashtra by a notification dated 18th September, 1987, issued under section 16 of the Representation of the People Act, 1951 ( 'the Act ') called upon six local authorities Constituencies in the State of Maharashtra to elect one member from each of the said constituencies to fill the vacancies in the Maharashtra Legislature Council.
On the same day, the Election Commission of India, the appellant, issued a notification under section 30 of the Act fixing the calendar of events for the purpose of holding the elections.
Osmanabadcum Latur Beed Local Authorities constituency was one of the said six constituencies.
Under the notification of the Election Commission, the last date for the withdrawal of the candidatures was 28th September, 1987 and the poll, if necessary, was to be taken on the 18th October, 1987 and the entire election process was to be completed within 21st October, 1987.
Respondents 1 to 5 filed a writ petition in High Court challenging the validity of the notification issued by Election Commission on 18th September 1987, on the ground that the notification was invalid because the Zilla Parishad of Osmanabad and Latur districts which were within the constituency had not been constituted and the Administrators were appointed to run the said Zilla Parishads and, therefore, the members of the Zilla Parishads who were entitled to take part in the said elections had been deprived of their right to participate in the said election.
Along with the writ petition, an application was made praying for the postponement of the last date of withdrawal of the candidates from 28th September, 1987 to 1st October, 1987.
A Single Judge of the High Court passed an order on September 26, 1987, issuing notice on the writ petition and passing an interim order ex parte directing the postponement of last date of withdrawal of the candidatures from 28th September, 1987 to October 1, 1987.
On October 1. 1987.
a Division Bench of 879 the High Court dismissed the writ petition.
The High Court did not take any observation as to the effect of the interim order passed by it earlier on the election programme.
18 Candidates withdrew their candidature by 1st October, 1987, the last date for withdrawal of candidatures as per the interim order passed by the High Court.
In the circumstances, the Election Commission postponed the date of poll from 18th October, 1987 (as originally notified) to 18th November, 1987, in compliance with the spirit underlying section 30(d) of the Act, which contemplated an interval of 20 days between the last date for withdrawal of candidatures and the date of poll and notified the change of the date of poll in the official Gazette.
It also notified 4th November, 1987 as the date before which the election had to be completed instead of 21st October, 1987, originally fixed.
On 16 l0 1987, the respondents 1 to 5 filed a review petition before the High Court, seeking a direction that the election programme might be renotified on the ground that clear 20 days ' interval was not there between the last date of withdrawal of candidatures and the date of poll originally fixed, viz. 18th October, 1987.
The High Court on 16th October 1987, passed an order adjourning the case to October 26, 1987 and staying the election fixed for the 18th October, 1987 till it passed further order on 26th October 1987, even though it was brought to the notice of the High Court that the Election Commission had on 16.10.1987 already postponed the date of poll from 18th October, 1987 to 1st November, 1987.
Aggrieved by the interim order in the writ petition postponing the last date of withdrawal of the candidatures from 28th September, 1987, to October 1, 1987 and by the interim order passed on October 16, 1987 in the Review Petition, the Election Commission appealed to this Court for relief by special leave.
Allowing the appeal, the Court, ^ HELD: A dispute regarding election to the Legislative Council of a State can be raised only under the provisions contained in Part VI of the Act.
Section 80 A of the Act provides that the Court having jurisdiction to try on election petition shall be the High Court.
In view of the non obstante clause contained in Article 329 of the Constitution, the power of the High Court to entertain a petition questioning an election on whetever grounds under Article 226 of the Constitution is taken away.
If there was any ground relating to the non compliance with the provisions of the Act and the Constitution on which the validity of any election process could be questioned, the person interested in question 880 ing the election has to wait till the election is over and institute a petition in accordance with section 81 of the Act calling in question the election of the successful candidate within forty five days from the date of election of the returned candidate but not earlier than the date of election.
The High Court even though it had issued an interim order in the writ petition on 26.9.1987 postponing the last date for withdrawal of the 13 candidatures to 1st October, 1987, dismissed the petition by its judgment dated 1.10.1987.
Having dismissed the petition on 1.10.1987, the High Court committed a serious error in entertaining a review petition in the very same writ petition on 16.
10.1987 and passing an order staying the election which had been earlier fixed for 18.10.87 till further orders "looking to the mandatory provisions of section 30 of Representation of the People Act.
" The High Court failed to recall to its mind that it was not its concern under Article 226 of the Constitution to rectify any error even if there was an error committed in the process of election at any stage prior to the declaration of the result of the election notwithstanding the fact that the error in question related to a mandatory provision of the statute relating to the conduct of the election.
If there was any such error committed in the course of the election process, the Election Commission had the authority to set it right by virtue of power vested in it under Article 324 of the Constitution as decided in Mohinder Singh Gill & Anr.
vs The Chief Election Commisioner, New Delhi & Ors., , and to see that the election process was completed in a fair manner.
[886A B, G H; 887E H] In this case, 75% of the total electorate (including the number of members of the Zilla Parishads of Osmanabad and Latur districts who would have been voters had the said Zilla Parishads been constituted) were entitled to vote.
Since the existing position in the constituency satisfied the guideline prescribed by the Election Commission, the election from the said constituency had been ordered.
It was only on account of the interim order passed by the High Court on 26.9.1987 postponing last date for withdrawal of the candidatures from 28.9.1987 to 1.10.1987 and not on account of any mistake committed by the Election Commission that the interval between the last date of withdrawal and the date of poll, originally fixed as 18.10.1987 fell short of the period of twenty days prescribed by clause (d) of section 30 of the Act.
After the judgment of the High Court was pronounced dismissing the writ petition on 1.10.1987, in order to ensure that there was an interval of 20 days between the last date for withdrawal of candidatures and the date of poll, the Election Commission had on its own postponed the date of poll on 1.11.1987 and published a notification in the official Gazette even before the Court passed another interim order on 16.10.1987 in 881 the Review Petition.
All these changes in the calendar of events of the election came about because of the earlier interim order of the High Court.
It is not the law that every non compliance with the provisions of the Act or the Constitution will vitiate an election.
It is only when it is shown that the result of the election was materially affected by such non compliance that the High Court would have the jurisdiction to set aside an election in accordance with section 100(1)(d)(iv) of the Act.
[888C G] The High Court grievously erred in entertaining the review petition and passing an interim order on 16.10.1987.
Both the interim orders the one passed on 26.9.1987 postponing the last date of withdrawal of the candidatures, and the other, passed on 16.10.1987 were without jurisdiction.
There was hardly any justification for entertaining the review petition in the circumstances of the case and issuing notice thereon particularly after the High Court itself had rejected the writ petition on the ground that it had no jurisdiction to interfere with the process of election at that stage in view of the provisions of Article 329(b) of the Constitution.
The Review Petition before the High Court was liable to be dismissed.
The entire proceedings in the High Court amounted to a clear abuse of the process of law.
[889B D] OBSERVATION: The success of democracy is dependent upon the cooperation of the Legislature, the press, the political parties and above all the citizenry, and each of them discharging the duties assigned to it.
Every member of the body politic should play his legitimate role for the success of the democracy.
Some times, the success of democracy also depends upon the observance of restraint on the part of the Constitutional functionaries.
[888H; 889A B] Inderjit Barua & Ors.
vs Election Commission of India & Ors., [1985] Supp.
3 S.C.R. 225 A.I.R 1984 S.C. 1911; N.P. Ponnuswami vs Returning officer Namakkal Constituency and Ors., ; ; Lakshmi Charan Sen & Ors.
vs A.K.M. Hassan Uzzaman & Ors.
etc., [1985] Supp. 1 S.C.R. 493 and Mohinder Singh Gill & Anr.
vs The Chief Election Commissioner, New Delhi & Ors.
J , referred to.