judgement:
Appeal No. 436 of 1965.
Appeal from the judgment and order dated November 17, 1964 of the Calcutta High Court in Civil Rule No. 849(W) of 1963.
A. D. Mukherjee, Arun Dutta, section P. Mukhopadhya, M. Raja gopalan, D. N. Mukherjee, K. Rajendra Chaudhury and K. R. Chaudhury, for the appellants.
C. K. Daphtary, Attorney General, B. Sen and B. R. G. K. Achar, for respondents nos.
1 and 2.
B. Sen, section C. Bose and P. K. Bose, for respondents nos.
3 and 4.
The Judgment of the Court was delivered by Gajendragadkar, C.J.
The writ petition from which this appeal arises was filed by the six appellants who reside within the limits of Thana Jalpaiguri in the district of Jalpaiguri.
To their petition, they had impleaded as opponents the four respondents, the Union of India, the Secretary of External Affairs, Government of India, the State of West Bengal, and the Collector of Jalpaiguri. 'Me substance of the prayer made by the appellants in their writ petition was that the respondents were attempting or taking steps to transfer a portion of Berubari Union No. 12 and the village of 433 Chilahati to Pakistan and they urged that the said attempted transfer was illegal.
That is why the writ petition prayed that appropriate writs or directions should be issued restraining the respondents from taking any action in pursuance of their intention to make the said transfer.
Appellants 1 and 2 are the original inhabitants of villages Senpara and Deuniapara respectively which are within the limits of Berubari Union No. 12.
They own ancestral homes and cultivated lands in the said villages, and they live in the homesteads.
Appellants Nos. 3 and 4 originally resided in villages in Thana Boda adjoining Thana Jalpaiguri; but when Thana Boda was transferred to Pakistan as a result of the partition in 1947, they came over to the villages of Senpara and Gouranga bazar respectively within the limits of Berubari Union No. 12; since then, they have acquired lands there and built their homesteads in which they live.
Appellants Nos.
5 and 6 are the inhabitants of village Chilahati, and according to them, this village is situated in Thana Jalpaiguri.
In this village, these two appellants have their ancestral homes and cultivated lands.
It is a matter of common knowledge that on September 10, 1956, an agreement was reached between the Prime Ministers of India and Pakistan with a view to settle some of the disputes and problems pending between the two countries.
This agreement was set out in the note jointly recorded by the Commonwealth Secretary, Ministry of External Affairs, Government of India, and the Foreign Secretary, Ministry of Foreign Affairs and Commonwealth Relations, Government of Pakistan.
After this agreement was entered into, the President of India referred three questions to this Court for consideration and report thereon, under article 143(1) of the Constitution, because he took the view that the said questions had arisen and were of such nature and of such importance that it was expedient that the opinion of the Supreme Court of India should be obtained thereon.(1) These three questions were thus formulated : "(1) is any legislative action necessary for the implementation of the Agreement relating to Berubari Union ? (2) If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary, in addition or in the alternative? (1) Special Reference No I of 1959.
In re: The Berubari Union and Exchange of Enclaves (1) at pp. 256, 295 4. 434 (3) Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the Agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or in the alternative ?" On the above Reference, this Court rendered the following ,answers : Q. (I ) Yes.
Q. (2) (a) A law of Parliament relatable to article 3 of the Constitution would be incompetent; (b) A law of Parliament relatable to article 368 of the Constitution is competent and necessary; (c) A law of Parliament relatable to both article 368 and article 3 would be necessary only if Parliament chooses first to pass a law amending article 3 as indicated above; in that case, Parliament may have to pass t law on those lines under article 368 and then follow it up with a law relatable to the amended article 3 to implement the Agreement.
Q. (3) Same as answers (a), (b) and (c) to Question 2.
As a result of the opinion thus rendered, Parliament passed the Constitution (Ninth Amendment) Act, 1960 which came into operation on December 28, 1960.
Under this amendment, "appointed day" means such date as the Central Government may, by notification in the Official Gazette, appoint as the date for the transfer of territories to Pakistan in pursuance of the 'Indo Pakistan Agreements ' which means the Agreements dated the 10th September, 1958, the 23rd October, 1959, and the 11th January, 1960 entered into between the Government of India and Pakistan.
The relevant extracts.
from the said Agreements have been set out in the Second Schedule to the Ninth Amendment Act.
The material portion of the said Schedule reads as follows "(3) Berubari Union No. 12 This will be so divided as to give half the area to Pakistan, the other half adjacent to India being retained by India.
The division of Berubari Union No. 12 will be horizontal, starting from the north east corner of Debi ganj Thana.
435 The division should be made in such a manner that the Cooch Behar enclaves between Pachagar thana of East Pakistan and Berubari Union No. 12 of Jalpaiguri thana of West Bengal will remain connected at present with Indian territory and will remain with India.
The Cooch Behar enclaves lower down between Boda thana of East Pakistan and Berubari Union No. 12 will be exchanged along with the general exchange of enclaves and will go to Pakistan.
" The appellants alleged that it had come to their knowledge that about a month before the date of their petition, officers of the two Governments had gone to the locality to make demarcation by holding a survey and that the respondents intended to effect a partition of Berubari Union No. 12 with a view to transfer the southern part of the said Union to Pakistan.
They had also come to know that a similar attempt to transfer village Chilahati was being made.
The appellants also alleged that the language of the Amendment Act in question in so far as it relates to Beru bari Union No. 12 is involved and confused and is incapable of implementation.
In the alternative, it is urged that if the division of Berubari Union No. 12 is made as directed by the said amendment, no portion of Berubari Union No. 12 would fall to the south of the horizontal line starting from the northeast comer of Debiganj Thana, and so, no portion of the said Union can be transferred to Pakistan.
In regard to the village of Chilahati, the appellants ' case was that the said village was not covered either by the Indo Pakistan Agreements or by the Ninth Amendment Act.
According to them, this village was a part of West Bengal and it was not competent to the respondents to transfer it to Pakistan without adopting the course indicated in that behalf by the opinion of this Court on the earlier Reference.
That is how the appellants claimed the issue of a writ of in the nature of mandamus commanding the respondents to forbear from proceeding any further with the survey and demarcation of the area of Berubari Union No. 12 and Chilahati and from giving effect to their intentions to transfer a part of Berubari Union No. 12 and Chilahati to Pakistan.
That is the substance of the petition filed by the appellants before the Calcutta High Court on December 4. 1963.
The respondents disputed the appellants right to obtain any writ or direction in the nature of mandamus as claimed by them.
They urged that the relevant provisions of the Ninth Amendment Act were neither vague nor confused, and were capable of imple 436 mentation.
It was alleged that the assumption made by the appellants that a strict horizontal line had to be drawn from the north cast comer of Debiganj Thana under the provisions of the said Amendment Act, was not valid; and they urged that the said Amendment Act had provided for the partition of Berubari Union No. 12 half and half in the manner indicated by it.
The respondents were, therefore, justified in giving effect to the material provisions of the said Amendment Act.
In regard to the village of Chilahati, the respondents contended that the said village formed part of Debiganj Thana and had been assigned to the share of Pakistan by the Radcliffe Award.
All that the respondents intended to do was to transfer to Pakistan a small area of about 512 acres of the said village which had not been delivered over to Pakistan on the earlier occasion when partition was made.
That being so, the intended transfer of the said village was fully legal and valid and did not contravene any provisions of the, Constitution.
On these pleadings, the parties led evidence in the form of maps, and the case was argued elaborately before the learned trial Judge.
The trial Judge has found against the appellants on all the important issues.
He has held that the map Ext.
A 1 on which the appellants substantially based their case, was really not admissible under section 36 of the Indian Evidence Act.
Alternatively, he found that the map was not reliable and could not be legitimately utilised for the purpose of determining the merits of the appellants ' contention.
The learned Judge examined the maps produced by the respondents and came to the conclusion that they were admissible and reliable.
On examining these maps, the learned Judge held that Berubari Union No. 12 could be divided half and half as required by the material provisions of the Amendment Act and that the appellants were not justified in contending that the said provision was not capable of implementation.
In that behalf, the learned Judge placed considerable reliance on the congregated map Ext.
The learned Judge has rejected the contention of the appellants that if a fair partition of Berubari Union No. 12 is made as directed by the Amendment Act, no part of Berubari Union No. 12 would fall to the south and as such, no part of the said Union could be transferred to Pakistan.
He was not impressed by the appellants ' argument that the division of Berubari Union No. 12 had to be made by a strict horizontal line; in his opinion, the north east comer of Debiganj Thana mentioned in the relevant provision was not a geometrical point, but it gives some scope for shifting the point of commencement to suit the process of division, when the provision says that the division shall be made horizontal, it only means that it was not to 437 be vertical; it had to be according to the latitude and not according to the longitude.
He observed that the problem presented by the relevant provisions of the Amendment Act was not intended to be solved as a mathematical problem, and that when the appellants contended that the division had to be made by a strict mathematical line, they ignored the fact that the said provision made no reference to any tangential planes or geometrical lines.
On these findings, the learned Judge rejected the appellants ' prayer for the issue of a writ in respect of the proposed transfer of Berubari Union No. 12.
In regard to the appellants ' case about the village of Chilahati, the learned Judge held that Chilahati was a part of Debiganj .
Thana and had been allotted to the share of Pakistan under the Radcliffe Award.
The theory set up by the appellants that the village of Chilahati which was being transferred to Pakistan was different from Chilahati which was a part of the Debiganj Thana, was rejected by the learned Judge; and he found that a small area of 512 acres appertaining to the said village had not been delivered to Pakistan at the time of the partition; and so, when the respondents were attempting to transfer that area to Pakistan, it was merely intended to give to Pakistan what really belonged to her; the said area was not, in law, a part of West Bengal, and no question in relation to the constitutional validity of the said proposed transfer can, therefore, arise.
The plea of adverse possession which was made by the appellants alternatively in respect of Chilahati was rejected by the learned Judge.
In the result, the appellants ' prayer for the issue of a writ or order in the nature of mandamus in respect of the said proposed transfer of Chilahati was also disallowed.
It appears to have been urged before the learned Judge that in order to make the transfer of a part of Berubari Union No. 1.2 to Pakistan, it was necessary to make a law relating to article 3 of the Constitution.
The learned Judge held that this plea had been rejected by this Court in the opinion rendered by it on the earlier Reference; and so, an attempt made by the respondents to implement the material provisions of the Ninth Amendment Act was fully valid and justified.
That is how the writ petition filed by the appellants came to be dismissed.
The appellants then moved the learned Judge for a certificate, to prefer an appeal to this Court; and after the learned Judge was pleased to grant them the said certificate, they have come to this Court by their present appeal.
438 Before proceeding to deal with the points which have been raided before us by Mr. Mukherjee on behalf of the appellants, it is necessary to advert to the opinion expressed by this Court in Re The Berubari Union and Exchange of Enclaves(1) with a view to correct an error which has crept into the opinion through inadvertence.
On that occasion, it was urged on behalf of the Union of India that if any legislative action is held to be necessary for the implementation of the Indo Pakistan Agreement, a law of Parliament relation to article 3 of the Constitution would be sufficient for the purpose and that it would not be necessary to take any action under article 368.
This argument was rejected.
In dealing with this contention, it was observed by this Court that.
the power to acquire new territory and the power to cede a part ,of the national territory were outside the scope of article 3(c) of the Constitution.
This Court then took the view that both the powers were the essential attributes of sovereignty and vested in India as an independent Sovereign Republic.
While discussing the significance of the several clauses of article 3 in that behalf, it ,seems to have been assumed that the Union territories were outside the purview of the, said provisions.
In other words, the opinion proceeded on the basis that the word "State" used in all the said clauses of article 3 did not include the Union territories specified in the First Schedule.
Apparently, this assumption was based on the distinction made between the two categories of terri tories by article 1(3).
In doing so, however, the relevant provisions of the General Clauses Act (Act X of 1897) were inadvertently not taken into account.
Under section 3(58)(b) of the said Act, "State" as respects any period after the commencement of the 'Constitution (Seventh Amendment) Act, 1956, shall mean a 'State as specified in the First Schedule to the Constitution and shall include a Union territory.
This provision of the General Clauses Act has to be taken into account in interpreting the word "State" in the respective clauses of article 3, because article 367(1) specifically provides that unless the context otherwise requires, the , shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for 'the interpretation of an Act of the Legislature of the Dominion of India.
Therefore, the assumption made in the opinion that article 3 in its several clauses does not include the Union territory is misconceived and to that extent, the incidental reason given in support of the main conclusion is not justified.
How ever, the conclusion itself was based primarily on the view that (1) 439 the power to cede a part of the national territory and the power to acquire additional territory were the inherent attributes of sovereignty; and if any part of the national territory was intended to be ceded, a law relating to article 3 alone would not be enough unless appropriate action was taken by the Indian Parliament under article 368.
It is common ground that the Ninth Constitution Amendment Act has been passed by Parliament in the manner indicated in the opinion rendered by this Court on the said Reference.
Reverting then to the points urged before us by Mr. Mukerjee, the first question which falls to be considered is whether the learned trial Judge was in error in holding that the map Ext.
A 1 on which the appellants had rested their case was neither relevant nor reliable.
There is no doubt that the sole basis on which the appellants challenged the validity of the intended transfer of a part of Berubari Union No. 12 was that the division had to be made by a strict horizontal line beginning with the north east corner of the Debiganj Thana and drawn east west, and that if such a division is made, no part of Berubari Union No. 12 could go to Pakistan.
It is common ground that the intention of the relevant provision is that after Berubari Union No. 12 is divided, its northern portion should remain with India and the southern portion should go to Pakistan.
The appellants, urged that if a horizontal line is drawn from the north east comer of Debiganj Thana from east to west, no part of Berubari Union No. 12 falls to the south of the horizontal line, and therefore, it is impossible to divide Berubari Union No. 12 into two halves by the process intended by the Amendment Act.
Now, the 'wall map ' Ext.
A 1 purports to have been prepared by Shashibhushan Chatterjee, F.R.G.S. & Sons, of the District of Jalpaiguri in the scale of 1"=3.8 miles.
The learned Judge has pointed out that on the record, there is no material whatever to vouch for the accuracy of the map.
It was not stated who Shashibhushan Chatterjee was, and it is plain that the map is not in official map.
The sources on which Mr. Chatterjee relied in preparing the map are not indicated; on the other hand, there are intrinsic indications of its shortcomings.
The learned Judge has referred to these shortcomings in the course of his judgment.
When the questions about the admissibility of this map and its validity were argued before the learned Judge, an attempt was made by the appellants to support their case by filing further affidavit made by Mr. Sunil Gupta, the 'tadbirkar ' of the appellants.
In this affi davit, it was alleged that the said map was one of the numerous 440 maps published by Mr. Shashibhushan Chatterjee and generally offered for public sale.
This latter statement was made obviously to meet the requirements of section 36 of the Evidence Act.
Ms statement has been verified by Mr. Gupta as "true to his knowledge".
but no statement was made to show bow the deponent came to have personal knowledge in the matter.
The map bears no date and no evidence is adduced to show when it was prepared.
The learned Judge, therefore, rejected the statement made by M. Gupta.
The question about the admissibility of the map has to be considered in the light of section 36 of the Evidence Act.
The said section provides that : "Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or places made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts or places, are themselves relevant facts.
" The map in question clearly does not fall under the latter category of maps; and so, before it is treated as relevant, it must be shown that it was generally offered for public sale.
Since the learned Judge has rejected the statement of Mr. Gupta on this point, this requirement is not satisfied.
We see no reason why the view taken by the learned Judge in regard to the credibility of Mr. Gupta 's affidavit should be reversed.
So, it follows that without proof of the fact that the maps of the kind produced by the appellants were Generally offered for public sale, Ext.
A 1 would be irrelevant.
It is true that section 83 of the Evidence Act provides that the Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State government were so made, and are accurate; but maps or plans made for ,he purposes of any cause must be proved to be accurate.
The presumption of accuracy can thus be drawn only in favour of maps which satisfy the requirements prescribed by the first part of section 83.
A 1 obviously does not fall under the category of the said maps, and so, there can be no question of drawing any presumption in favour of the accuracy of the said map.
In fact, as we have already indicated, the learned Judge has given very good reasons for showing that the map does not appear to be accurate.
Therefore, even if the map is held to be relevant, its accuracy is not at all established; that is the conclusion of the 441 learned Judge and Mr. Mukerjee has given us no satisfactory reasons for differing from the said conclusion.
Mr. Mukerjee then contended that in the present case it should be held that on the allegations made by the appellants and on the evidence such as they have produced, the onus to prove that the relevant portion of the Amendment Act was capable of implementation, had shifted to the respondents.
lie argues that the location of different villages in different Thanas is a matter within the special knowledge of the respondents, and under section 106 of the Evidence Act, they should be required to prove the relevant facts by leading adequate evidence.
He also attempted to argue that the respondents had deliberately suppressed material evidence from the Court.
The learned Judge was not impressed by these arguments and we think, rightly.
It is true that the official maps in regard to the area with which we are concerned are not easy to secure.
It is not, however, possible to accept the theory that they have been deliberately withdrawn from the market In fact, during the course of the hearing of the writ petition, the appellants themselves produced two maps Exts.
A 7 and A 8.
Besides, as the learned Judge points out, when the case was first argued before him, the learned Attorney General appearing for the respondents produced most of the maps relied upon by him, and the learned Judge directed that they should be kept on the record to enable the appellants to take their inspection.
Under these circumstance, ,, we do not see how the appellants can complain that the respon dents have suppressed evidence, or can ask the Court to hold that the onus was on the respondents to prove that the relevant provisions of the Amendment Act can be implemented.
The onus must primarily lie on the appellants to show that what is attempted to be done by the respondents in pursuance of the provisions of the Amendment Act is illegal or unconstitutional; and if they are not able to produce evidence in support of their plea, they cannot require the respondents to show that the plea made by the appellants is untenable.
The location of the villages in the different Thanas cannot be regarded as a matter within the exclusive knowledge of the respondents and in any case, it has to be proved by the production of reliable maps.
Both parties have produced maps; and the learned trial Judge has refused to accept the maps produced by the appellants as reliable and has treated the maps produced by the respondents as worthy of credence.
Under these circumstances, no question of onus really arises.
442 The respondents have produced eight maps in all.
One of them purports to be a congregated map of Police Station Jalpaiguri, Pochagar, Boda and Debiganj made and published under authority of Government dated September, 1930.
With regard to the congregated map, the learned Judge has observed : "One has only to see Ext.
2 map of Police Station Jalpaiguri and the congregated map Ext.
6 to find that the north eastern hump of Debiganj is not of the shape shown in the wall map of Sashi Bhushan Chatterjee Ext.
It is wholly different.
" That is one of the reasons given by the learned Judge for disbelieving the appellants ' map Ext.
The learned Judge then proceeded to compare the maps produced by the respondents and the congregated map of the District of Jalpaiguri and found that they tally in all details.
Having thus examined the relevant material produced before , the learned Judge came to the definite conclusion that the congregated map had been reasonably and accurately drawn and should be relied upon.
In fact, the learned Judge has given six different reasons for rejecting the map produced by the appellants, and he found no difficulty in accepting the maps produced by the respondents.
The learned Judge thought that the case made out by the appellants was entirely misconceived since it was solely based on an incorrect map.
Having regard to the finding made by the learned Judge on these maps, we do not see how the appellants can contend that they have established their plea that the relevant portion of the Constitution Amendment Act is incapable of implementation.
It is true that the appellants contended before the learned Judge that the Agreement in question requires that a geometrical point be fixed at the north eastern extremity of Debiganj and then a geometrical line be drawn in a plane tangential to that geometric point, in the direction east to west, at an angle of 90 to the vertical, and this line should divide Berubari Union No. 12 into two exact equal halves.
The learned Judge found no difficulty in rejecting this contention, and we are satisfied that the conclusion of the learned Judge is absolutely right.
It would be recalled that the relevant portion of the Agree ment which had been included in the Second Schedule to the Ninth Amendment Act, in substance, provides for the division of Berubari Union No. 12 half and half.
This division has to be so made that the southern portion goes to Pakistan and the northern portion which is adjacent to India remains with India.
When it is said that the division will be "horizontal", starting from the north east comer of Debiganj Thana, it is not intended 443 that it should be made by a mathematical line in the manner suggested by the appellants.
In fact, the provision does not refer to any line as such; it only indicates broadly the point from which, the division has to begin east to west, and it emphases that in making the said division, what has to be borne in mind is the fact that the Union in question should be divided half and half.
Even this division half and half cannot, in the very nature of things, be half and half in a mathematical way.
The latter provision of the Agreement in relation to Cooch Behar also gives additional guidance which has to be taken into account in effecting the partition of Berubari Union No. 12.
Therefore, the learned Judge was plainly right in rejecting the contention of the appellants that a straight horizontal line has to be drawn from the north east comer of Debiganj Thana in order to effect the, division of Berubari Union No. 12.
So, there is no substance in the contention raised by Mr. Mukerjee before us that the learned Judge should have issued a writ or order in the nature of mandamus prohibiting the division of Berubari Union No. 12.
In the course of his arguments, Mr. Mukerjee no doubt faintly suggested that the Schedule annexed to the Amendment Act should itself have shown how the division bad to be made.
In other words, the argument was that more details should have been given and specific directions issued by the Ninth Amendment Act itself as to the manner of making the division.
This contention is clearly misconceived and must be rejected.
All ' that the relevant provision has done is to record the decision reached by the Prime Ministers of the two countries and make it effective by including it in the Constitution Amendment Act as suggested by this Court in its opinion on the Reference in respect of this case.
That takes us to the case of Chilahati.
It was urged before the learned trial Judge that Chilahati admeasuring about 512 acres which is proposed to be transferred to Pakistan is not a part of Debiganj Thana, but is a part of thana Jalpaiguri and as such, is outside the Radcliffe Award.
It is common ground that Chilahati which is a part of Debiganj Thana has been allotted ' to Pakistan by the said Award.
But the contention is that what is being transferred now is not a part of the said Chilahati The learned Judge has rejected this contention broadly on two grounds.
He has held that the plea that there are two Chilahatis, one, situated in Debiganj Thana, and the other in Thana Jalpaiguri, was not clearly made out in the writ petition as it was filed.
This plea was introduced by Ram Kishore Sen and Dhaneswar Roy in 444 their affidavit filed on February 7, 1964.
The learned Judge has found that this theory is plainly inconsistent with the maps produced in the case.
The maps show only one Chilahati and that, according to the learned Judge, is a part of Debiganj Police Station.
This finding is substantially based on the affidavit made by Mr. C. section Jha, Commonwealth Secretary in the Ministry of External Affairs, and the notification filed along with it.
This notification which has been issued on July 28, 1925, shows that Chilahati was to form part of Debiganj Police Station.
It stated that its serial number in the General Jurisdiction List is 61.
The Jurisdiction List relating to Thana Jalpaiguri was also produced.
The relevant entry at p. 13 shows the Jurisdiction List No. as 248, and in the last column, the Police Station under which the village of Chilahati is shown to exist is Debiganj; its area is 10,006.75 acres which is equal to roughly 15 to 16 square mile& In fact, the maps Exts.
A 7 and A 8 produced by Mr. Mukerjee show that the Jurisdiction List number of Chilahati is 248, and that, in turn, proves the respondents ' case that Chilahati is within the jurisdiction of Police Station Debiganj.
The two survey maps produced by the respondents Exts. 8 and 9 also corrobo rate the same conclusion.
When these two maps were put side by side, the learned Judge found that their edges exactly fit into one another.
Mr. Mukerjee very strongly relied on certain private docu ments produced by the appellants in the form of transfer deeds In these documents, no doubt, Chilahati has been referred to as forming part of District Jalpaiguri.
These documents range between 1925 A.D. to 1945 A.D.
It may well be that a part of this elongated village of Chilahati admeasuring about 15 to 16 square miles may have been described in certain private documents as falling under the district of Jalpaiguri.
But, as pointed out by the learned Judge, in view of the maps produced by the respondents it is difficult to attach any importance to the recitals made by individuals in their respective documents which tend to show that Chilahati is a part of Police Station Jalpaiguri.
Indeed, no attempt was made to identify the lands concerning the said deeds with the Taluka maps with the object of showing that there was another Taluka Chilahati away from Berubari Union No. 12.
The learned Judge has also referred to the fact that Mr. Mukerjee himself relied upon a map of Taluka Chilahati which is in Police Station Debiganj and not Jalpaiguri.
Therefore, we see no justification for Mr. Mukerjee contention ,that the learned Judge was in error in rejecting the appellants, case that a part of Chilahati which is being handed over to 445 Pakistan does not pertain to village Chilahati which is situated in Debiganj Police Station, but is a part of another Chilahati in the district of Jalpaiguri.
There is no doubt that if a small portion of land admeasuring about 512 acres which is being transferred to Pakistan is a part of Chilahati situated within the jurisdiction of Debiganj Thana, there can be no valid objection to the proposed transfer.
It is common ground that the village of Chilahati in the Debiganj Thana has been allotted to Pakistan; and it appears that through inadvertence, a part of it was not delivered to Pakistan on the occasion of the partition which followed the Radcliffe Award.
It is not surprising that in dividing territories under the Radcliffe Award, such a mistake should have occurred; but it is plain that what the respondents now propose to do is to transfer to Pakistan the area in question which really belongs to her.
In our opinion, this conduct on the part of the respondents speaks for their fair and straightforward approach in this matter.
That takes us to another contention raised by Mr. Mukerjee in respect of the village of Chilahati.
He argues that having regard to the provisions contained in Entry 13 in the First Schedule to the Constitution of India, it must be held that even though a portion of Chilahati which is being transferred to Pakistan may have formed part of Chilahati allotted to Pakistan under the Radcliffe Award, it has now become a part of West Bengal and cannot be ceded to Pakistan without following the procedure prescribed by this Court in its opinion on the earlier Reference.
Entry 13 in the First Schedule on which this argument is based, provides, inter alia, that West Bengal means the territories which immediately before the commencement of this Constitution were either comprised in the Province of West Bengal or were being administered as if they formed part of that Province.
Mr. Mukerjee 's argument is that it is common ground that this portion of Chilahati was being administered as if it was a part of the Province of West Bengal; and so, it must be deemed to have been included in the territory of West Bengal within the meaning of the First Schedule, and if that is so, it is a part of the territory of India under article 1 of the Constitution.
It is true that since this part of Chilahati was not transferred to Pakistan at the proper time, it has been regarded as part of West Bengal and administered as such.
But the question is : does this fact satisfy the requirement of Entry 13 on which the argument is based ? In other words, what is the meaning of the clause "the territories which were being administered as if they formed part of that 65Sup.
CI/65 14 446 Province"; what do the words "as if" indicate in the context ? The interpretation of this clause necessarily takes us to its previous history.
First Schedule enumerated Part A States.
The territory of the State of West Bengal was one of such States.
The Schedule then provided the territory of the State of West Bengal shall comprise the territory which immediately before the commencement of this Constitution was comprised in the Province of West Bengal.
The territory of the State of Assam was differently described; but with the description of the said territory we are not concerned in the present appeal.
The territory of each of the other States was, however, described as comprising the territories which immediately before the commencement of this Constitution were comprised in the corresponding Province and the territories which, by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before such commencement being administered as if they formed part of that Province.
It is significant that this descriptive clause was not used while describing the territory of the State of West Bengal by the Constitution as it was first enacted.
The Constitution (Amendment of the First and Fourth Sche dules) Order 1950, however, made a change and brought the territory of the State of West Bengal into line with the territories of the other States covered by the clause which we have just quoted.
This Order was passed on January 25, 1950, and it deleted the paragraph relating to the territory of the State of West Bengal, with the result that the last clause of the First Schedule became applicable to it.
In other words, as a result of the said Order, the territory of the State of West Bengal must be deemed to have always comprised the territory which immediately before the commencement of the Constitution was comprised in the Province of West Bengal, as well as the territories which, by virtue of an order made under section 290A of the Government of India Act, 1935, were immediately before such commencement being administered as if they formed part of West Bengal.
Let us now refer to section 290A of the Government of India Act, 1935.
The said section reads thus "Administration of certain Acceding States as a Chief Commissioner 's Province or as part of a Governor 's or Chief Commissioner 's Province: 447 (1) Where full exclusive authority, jurisdiction and powers for and in relation to governance of any Indian State or any group of such States are for the time being exercisable by the Dominion Government, the Governor General may by order direct (a) that the State or the group of States shall be administered in all respects as if the State or the group of States were a Chief Commissioner 's Province; or (b) that the State or the group of States shall be administered in all respects as if the State or the group, of States formed part of a Governor 's or a Chief Commissioner 's Province specified in the Order.
" It will be noticed that the significant and material words with which we are concerned have been used in clauses (a) and (b) of section 290A and have been reproduced in the relevant clause of the First Schedule to the Constitution.
It is well known that at the relevant time, merger of States was taking place on a large scale and the covenants which were being executed in that behalf conformed to the same pattern.
The Order No. S.O. 25 made by the Governor General on July 27, 1949 and published for general information provided by clause 3 that as from the appointed day, the States specified in each of the Schedules shall be administered in all respects as if they formed part of the Province specified in the heading of that Schedule.
The effect of this clause was that when any territory merged with a neighbouring State, it came to be administered as if it was a part of.
the said State.
That is the purport of the relevant clause of the covenants signed on the occasion of such mergers.
In fact, a similar clause was included in the State Merger (West Bengal) Order, 1949.
In view of this constitutional background, the words "as if" have a special significance.
They refer to territories which originally did not belong to West Bengal but which became a part of West Bengal by reason of merger agreements.
Therefore, it would be impossible to hold that a portion of Chilahati is a territory which was administered as if it was a part of West Bengal.
Chilahati may have been administered as a part of West Bengal; but the said administration cannot attract the provisions of Entry 13 in the First Schedule, because it was not administered as if it was a part of West Bengal within the meaning of that Entry. 'Me physical fact of administering the said area 448 was not referable to any Merger at all; it was referable to the accidental circumstance that the said area had not been transferred to Pakistan as it should have been.
In other words, the clause "as if" is not intended to take in cases of territories which are administered with the full knowledge that they do not belong to West Bengal and had to be transferred in due course to Pakistan.
The said clause is clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time, and so, it cannot include a part of Chilahati that was administered by West Bengal under the circumstance to which we have just referred.
That is why we think Mr. Mukerjee is not right in contending that by reason of the fact that about 512 acres of Chilahati were not transferred to Pakistan and continued to be administered by the West Bengal Government, that area became a part of West Bengal within the meaning of Entry 13 in Schedule 1.
The West Bengal Government knew all the time that it was an area which belonged to Pakistan and which had to be transferred to it.
That is, in fact, what the respondents are seeking to do; and so, it would be idle to contend that by virtue of the accidental fact that this area was administered by West Bengal, it has constitutionally and validly become a part of West Bengal itself.
That being so, there can be no question about the constitutional validity of the proposed transfer of this area to Pakistan.
What the respondents are seeking to do is to give to Pakistan what belongs under the Radcliffe Award.
Mr. Dutt, who followed Mr. Mukerjee, attempted to argue that the village of Chilahati has become a part of West Bengal and as such, a part of the Union of India because of adverse possession.
He contends that ever since the Radcliffe Award was made and implemented, the possession of West Bengal in respect of this area is adverse; and he argues that by adverse possession, Pakistan 's title to this area has been lost.
We do not think it is open to the appellants to raise this contention.
It has been fairly conceded by Mr. Dutt that no such plea had been raised in the writ petition filed by the appellants.
Besides, it is plain that neither the Union of India, nor the State of West Bengal which are impleded to the present proceedings make such a claim.
It would indeed be surprising that even though the Union of India and the State of West Bengal expressly say that this area belongs to Pakistan under the Radcliffe Award and has to be delivered over to Pakistan, the petitioners should intervene and contend that Pakistan 's title to this property has been lost 449 because West Bengal had been adversely in possession of it.
It is, therefore, unnecessary to examine the point whether a plea of this kind can be made under international Law and if yes, whether it is sustained by any evidence on the record.
The result is, the appeal fails and is dismissed.
There would be no order as to costs.
Appeal dismissed.

summary:
As a result of the 'Indo Pakistan Agreements ' entered into in 1956 between the Prime Ministers of India and Pakistan half of the area known as Barubari Union No. 12, and a portion of Chilahati village admeasuring 512 acres were agreed to be transferred by India to Pakistan.
Certain questions arising out of the implementation of the sand Agreements were referred by the President under article 143 (1) of the Constitution, to this Court, and were answered by this Court in Special Reference No. 1 of 1959.
In accordance with the answers therein given, Parliament passed the Constitution (Ninth Amendment) Act, 1960.
There was provision in the Act for a date, to be appointed by notification in the Official Gazette, for the transfer of the areas in question of Pakistan.
In regard to Berubari Union No. 12 the Second Schedule to the Amending Act, inter alia, This will be so divided as to give half the area to Pakistan, the half adjacent to India being retained by India.
The division of Berubari Union No. 12 will be horizontal, starting from the north east comer of Debiganj Thana.
" The appellants filed a writ petition in the High Court of Calcutta challenging the legality of the proposed transfer of the said areas of Berbubari Union No. 12 and Chilahati village to Pakistan.
The language of the Amending Act in regard to Berubari Union No., 12 was, they urged, so confused that it was incapable to implementation.
In regard to Chilahati village they urged that it was outside the Radcliffe Award.
Reliance was placed by them on an unofficial map, Ext.
The High Court found that Ext.
A 1 was inadmissible and unreliable.
Relying on the maps produced by the respondents it dismissed the writ petition filed by the appellants who, with certificate, appealed to this Court.
It was urged on behalf of the appellants : (1) If the division of Barubari Union No. 12 was made as directed by the said amendment no portion of Berubari Union No. 12 would fall to the south of the horizontal line starting from the north cast corner of Debiganj Thana, so that no part of the said Union could be transferred to Pakistan.
(2) The High Court erred in holding that map Ext.
A 1 was neither relevant nor accurate.
(3) The location of different villages in the various Thanas was a matter within the special knowledge of the respondents and under section 106 of the Evidence Act the onus of proving the relevant facts was on the respondents.
(4) The portion of Chilabati village in question was different from the village of Chilabati which bad gone to Pakistan under the Radcliffe Award, as was shown not only by maps but by certain private documents which described Chilabati as part of Jalpaiguri Thana.
(5) Entry 13 in the First Schedule to the Constitution provides, inter alia, that West Bengal means the territories which immediately before the commencement of the Constitution were either comprised in the Province of West Bengal or were being administered 'as if ' they formed part of that Province. 'Me portion of Chilahati in question was being administered 'as if ' it was a part of the Province of West Bengal and must be deemed to have been included 431 in the territory of West Bengal within the meaning of the First Schedule,, and if that was so, it was a part of the territory of India under article 1 of the Constitution.
It could not therefore be ceded to Pakistan without following the, procedure laid down by this Court in Special Reference No. 1 of 1959.
(6) In any case Pakistan 's title to Chilahati had been lost by adverse possession.
HELD : (i) It had not been proved that Ext.
A 1, relied on by the appellants, was generally offered for public sale.
The requirements of section 36 of the Evidence Act were thus not satisfied and Ext.
A 1 was irrelevant.
Even if the said map was treated as relevant its accuracy had not been established and no presumption as to its accuracy could be made under section 83 of the Evidence Act, since the requirements laid down in the first part of the section were not satisfied, [440 E H] (ii) Me location of ' villages of different Thanas could not be regarded as a matter within the exclusive knowledge of the respondents so as to attract the provisions of section 106 of the Evidence Act.
Both parties had; produced maps, the High Court refused to accept the maps produced by the appellants and treated the maps produced by the respondents as worthy of credence.
Under the circumstances no question of onus really arose.
[441 G H] (iii) The map produced by them having been rejected by the High Court, the appellants were hardly in a position to contend that they had established their plea that the relevant portion of the Constitution Amendment Act was incapable of implementation.
[442 D E] (iv) When it was said that the division of Berubari Union No. 12. would be 'horizontal ' starting from the north east corner of Debiganj Thana it was not intended that it was to be made by a mathematical line in the manner suggested by the appellants.
The provision did not refer to any line as such, it only indicated broadly the point from which the division was to begin east to west , and it emphasised that in making the said division what had to be borne in mind was the fact that the Union in question was to be divided half and half.
The contentions of the appellants in regard to Berubari Union No. 12 were therefore rightly rejected by the High Court.
[442 H 443 D] (v) The materials on record showed that the contention of the appellants that Chilahati village formed part of Thana Jalpaiguri was incorrect : it clearly lay within Debiganj Thana and under the Radcliffe Award had been allotted to Pakistan.
The private documents produced by the appellants for the purpose of showing that a part of Chilahati village lay in jalpaiguri Thana were rightly rejected by the High Court, as in view of the maps produced by !he respondents it was difficult to attach any importance to the recitals by individuals in their respective documents.
It was plain that through inadvertence a part of village Chilahati was not delivered to Pakistan on the occasion of the partition which followed the Radcliffe Award.
What the respondents proposed to do wag to transfer to Pakistan the area in question which really belonged to her.
This conduct of the respondents spoke of their fair and straightforward approach to this matter.
[444 E 45 D] (vi) The clause 'as if ' in Entry 13 of the First Schedule to the Constitution was not intended to take in cases of territories which were administered with the full knowledge that they did not belong to West Bengal ' and had to be transferred in due course to Pakistan. 'Me said clause was clearly and specifically intended to refer to territories which merged with the adjoining States at the crucial time and so it could not include the part of Chilahati administered by West Bengal.
It would be idle to contend 432 that by virtue of the accidental fact that this area had not been transferred to Pakistan, though it should have been, it had constitutionally and validly become a part of West Bengal itself.
That being so, there could be no question about the constitutional validity of the proposed transfer of this area to Pakistan.
What the respondents were seeking to do was to give to Pakistan what belonged to Pakistan under the Radcliffe Award.
[448 A E] (vii) The Plea of adverse possession was not raised by the appellants in their writ petition.
Besides it was plain that neither the Union of India nor the State of West Bengal, which were impleaded to the present proceedings, made such a claim.
It would indeed be surprising that even though the Union of India and the State of West Bengal expressly said that this area belonged to Pakistan under the Radcliffe Award and had to be delivered to Pakistan, the petitioners should intervene and contend that Pakistan 's title to this property had been lost because West Bengal had been adversely in possession of it.
[448 G H] (viii) In Special Reference No. 1 of 1959 it had been inadvertently assumed while discussing the several clauses of article 3 that the word 'State ' used therein did not include Union Territories.
In view of section 3 (58) (b) of the General Clauses Act (10 of 1897) this assumption was not correct.
However the opinion of the Court in that Reference was not based mainly on the above assumption, but on the view that the power to cede a part of national territory and the power to acquire additional territory were the inherent attributes of sovereignty.
[438 H]


judgement:
Appeal No. 459 of 1965.
Appeal by special leave from the judgment and order dated July 14, 1964 of the Punjab High Court in First Appeal from Order No.1 E of 1964.
Bishan Narain, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
section section Shukla, for respondent No. 1.
The Judgment of the Court was delivered by Wanchoo,J.
This is an appeal by special leave from the judgment of the Punjab High Court.
In the general election held in 1962 for Parliament (House of the People), the appellant was elected from the Sangrur parliamentary.
constituency.
Pritam Singh respondent was also one of the contesting candidates but lost in the election.
Thereupon he filed an election petition against the appellant challenging his election on a number of grounds.
In the present appeal we are only concerned with one ground, and that was that the nomination papers of one of the candidates for the ,election, namely, Wazir Singh, had been rejected improperly by the returning officer.
Wazir Singh had filed three nomination papers; with one of them he had attached a copy of a part of the electoral roll.
He attached no such copy with the other two nomination papers.
When the nomination papers were being scrutinised, an objection was taken to the validity of the nomination papers.
The returning officer first took up the nomination paper with which a copy of part of the roll had been filed and rejected it on the ground that the name of the parliamentary constituency and the name of the village and the assembly constituency and the part number of the electoral roll of the candidate was not mentioned also because the name of the parliamentary constituency (House of the People) of proposer was not given.
After rejecting this nomination paper, the returning offices took up the other two nomination papers and rejected them on the ground that a copy of the electoral roll of the constituency concerned or of the relevant part thereof or a certified 545 copy of the relevant entries had not been filed along with these nomination papers.
It may be added that the returning officer refused to look into the copy of the part of the roll which Wazir Singh had filed along with his nomination paper which the returning officer had already rejected before he took up the other nomination papers.
The main contention of respondent Pritam Singh in the election petition was that the returning officer was wrong in not looking into the copy of the part of the roll which had been filed with the first nomination paper of Wazir Singh and that merely because that nomination paper had been rejected, the returning officer was not precluded from looking into the copy of the part of the roll which had been produced with that nomination paper for the purpose of scrutiny of the other two nomination papers.
The appellant on the other hand contended that the nomination papers had been rightly rejected, and this contention was based on three points raised on his behalf, namely (i) that a copy of the electoral roll of that constituency or a relevant part thereof or a certified copy of the relevant entries of such roll should have been produced with each nomination paper separately; (ii) in any case the copy produced should have been of the parliamentary constituency and not of the assembly constituency; and (iii) that the copy produced of the part of the roll was not a complete copy of the part and therefore was not a compliance with the requirements of section 33 (5) of the Representation of the People Act, No. 43 of 1950, (hereinafter referred to as the Act).
The Election Tribunal seems to have taken the view that the copy filed along with the first nomination paper could not be looked into when the returning officer came to scrutinise the other nomination papers, even if it might be assumed to be a copy of the parliamentary electoral roll.
It further held that even if the copy could be looked into, it was not a complete copy and therefore there was no compliance with section 33 (5) of the Act and in consequence the Tribunal held that the returning officer was justified in rejecting the nomination papers notwithstanding the provisions of section 36 (4) of the Act.
Pritam Singh then went in appeal to the High Court.
The High Court held that the returning officer was wrong in not looking into the copy which had been produced along with the first nomination paper, and that the copy produced, though it was apparently of an assembly constituency, could also be taken to be a copy of the parliamentary roll.
Lastly on the question whether the copy produced was a complete copy or not, the High Court held that the copy actually produced, though it admittedly did not contain certain pages, was sufficient for the purposes of section 33 (5) of the Act.
In this view, the High Court held that one of the nomination papers of 546 Wazir Singh was improperly rejected and in consequence of that the result of the election was materially affected.
It therefore set aside the election.
The High Court having refused to grant a certificate, the appellant applied to this Court for special leave which was granted; and that is how the matter has come before us.
The same three points which were urged before the Tribunal on behalf of the appellant have been raised before us.
In the first place it is urged that the necessary copy required under section 33 (5) of the Act must be produced with every nomination paper, and that it is not enough where more nomination papers than one are filed that a copy should have been filed with only one of them.
Secondly it is urged that the copy produced was of the assembly constituency while it should have been of the parliamentary (House of the People) constituency.
Lastly the argument is that in any case the copy produced was not complete and therefore there was no compliance with section 33 (5) of the Act.
The returning officer therefore was justified in rejecting the nomination paper under section 36 (2) (b) of the Act and that section 36 (4) did not apply in the circumstances of the case.
We shall deal with these points seriatim.
Section 32 at the relevant time provided that "any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act.
" Section 4 (d) of the Act requires that in the case of any other seat for the House of the People besides those mentioned in cls.
(a), (b) and (c) of that section, a person has to be an elector for any parliamentary constituency (House of the People) to be entitled to stand for election to the House of the People.
It is with this qualification alone that we are concerned in the present appeal.
"Elector" is defined in section (2) (e) of the Act as meaning "in relation to a constituency a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950." Therefore if a person is an elector in a parliamentary (House of the People) constituency and is not subject to any disqualification he can stand for election to the House of the People from any constituency.
Then we come to section 33 (5).
The object of this provision obviously is to enable the returning officer to check whether the person standing for election is qualified for the purpose.
The electoral roll of the constituency for which the returning officer is making scrutiny would be with him, and it is not necessary for a candidate to produce the copy of the roll of that constituency.
But where the candidate belongs to another constituency the returning officer would not have the roll of that other constituency with him and therefore the provision contained in section 33 (5) has been made by the legislature to enable the returning officer to check that the candidate is qualified 547 for standing for election.
For that purpose the candidate is given the choice either to produce a copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper.
Naturally where the candidate is standing for a parliamentary constituency (House of the People) he will have to file a copy of the roll of some parliamentary constituency.
The argument on behalf of the appellant is that under the proviso to section 33(6) a candidate is entitled to file upto four nomination papers and therefore when section 33(5) says that a copy would be filed with the nomination paper it requires that one copy should be filed with each nomination paper and if that has not been done there is no compliance with section 33(5).
Section 33(5) does not require that a copy must be filed with each nomination paper for, the candidates is given the alternative to produce before the returning officer such copy at the time of the scrutiny.
So the candidate need not file any copy with the nomination paper and it is enough if he has a copy in his possession which he produces before the returning officer at the time of the scrutiny.
Further there is nothing in section 33(5) which requires that if a candidate has (say) filed four nomination papers he should have four copies with him to produce before the returning officer at the time of the scrutiny.
It would in our opinion be enough if he has one copy with him at the time of the scrutiny and shows it again and again as each nomination paper is taken up for scrutiny by the returning officer.
We see no sense in holding that.
in such a situation the candidate should arm himself with four copies for the purpose of showing the copy to the returning officer at the time of scrutiny.
The same copy in our opinion can be produced again and again before the returning officer as he takes up the scrutiny of each of the nomination papers filed on behalf of a candidate.
If that is so we see no difficulty in holding that where a number of nomination papers have been filed and a copy has been filed with one of them, that is enough.
Again we see nothing in section 33(5) which prevents a returning officer from looking at the copy filed with one nomination paper, even after that nomination paper has been rejected or with a nomination paper which is vending before him for scrutiny, when he comes to deal with other nomination papers.
As we have said before, the purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers.
It may be that for certain purposes each nomination paper stands by itself, but so far as filing of a copy with a nomination paper under section 33(5) is concerned, we must look at the object behind the provision, and if that object is served by filing a copy with one nomi 548 nation paper, we see no sense in requiring that where a number of nomination papers are filed there should be a copy with each, nomination paper.
There is nothing in section 33(5) which prevents, them returning officer from looking at a copy filed with a nomination paper which has been rejected, or which is still to be scrutinised for the purpose of satisfying himself when he takes up the other.
nomination papers that the candidate is qualified to stand.
Nor has any rule been shown to us which in terms prevents the returning officers from looking into a copy which has been filed with a nomination paper (which might have already been rejected) for the purpose of scrutinising other nomination papers of the same candidate.
If the purpose of section 33(5) can be served by the production of one copy at the time of scrutiny when it has not been filed with the nomination paper, we do not see why that purpose could not be served by filing a copy with one nomination paper where more nomination papers than one have been filed by the same candidate.
We therefore agree with the High Court that the returning officer was wrong in not looking at the copy filed with one nomination paper when he was dealing with other nomination papers of Wazir Singh.
This brings us to the second point raised before us, namely, that the copy filed was not of the parliamentary (House of the People) constituency but of the assembly constituency.
This contention also has no force.
If we look at the Representation of the People Act, 1950 we find that Part III thereof provides for the preparation of electoral rolls for assembly constituencies.
So far as parliamentary constituencies (House of the People) are concerned, section 13D provides inter alia that the electoral roll for every parliamentary constituency shall consist of the electoral rolls of so much of the assembly constituencies as are comprised within that parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency.
It is clear therefore that the electoral roll for a parliamentary constituency is no other than the electoral roll for the assembly constituencies comprised within that parliamentary constituency.
It is not in dispute that the electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein.
Therefore if a candidate files a copy of the electoral roll of an assembly constituency, that copy is sufficient to show that he is an elector in the parliamentary constituency, in which that assembly constituency is included.
The argument that the copy filed in the present case did not comply with section 33(5) as it was not a copy of the parliamentary constituency must therefore fail.
The copy was of an assembly constituency in this case; and if the candidate was an elector in the assembly constituency he would be an elector in the parliamentary (House of the People) constituency which includes 549 that assembly constituency.
The High Court therefore was right in rejecting the contention that the copy of the roll of the parliamentary (House of the People) constituency was not filed.
This brings us to the last point raised on behalf of the appellant, namely, that the copy filed was not a complete copy and therefore there was no compliance with section 33(5) of the Act.
It is not in dispute that the copy filed was not a complete copy.
The appellant produced a complete copy of that part of the roll and that showed that pages 19 to 22 and page 25 of that part of the roll were not filed by Wazir Singh.
Now section 33 (5) gives three options to a candidate in the matter of filing a copy.
He may file either a copy of the electoral roll which means a copy of the entire electo ral roll of the parliamentary (House of the People) constituency, or a copy of the relevant parts thereof, which means the whole of the parts concerned.
Under the Registration of Electors Rules, 1960 (hereinafter referred to as the Rules), it is provided by r. 5 that "the roll shall be divided into convenient parts which shall be numbered consecutively".
Therefore when section 33(5) refers to a copy of the relevant parts thereof, it means a part as defined in r. 5 above.
Besides these two alternatives, a candidate has a third alternative, namely, the production of certified copies of the entries of his name and the name of the proposer from any roll.
In the present case, the candidate Wazir Singh chose the second alternative, namely, he produced a copy of the relevant part thereof.
The part in question produced in this case was part IV of the Simla legislative assembly electoral roll.
Section 33(5) therefore required the candidate (namely, Wazir Singh) to produce the whole of this part.
It is not in despute that he did not produce the whole of this part and the question is whether his failure to do so would result in the rejection of his nomination paper.
To decide this question it is necessary to refer to the Rules.
Rule 10 requires that "as soon as the Roll for a constituency is ready, the registration officer shall publish it in draft by making a copy thereof available for inspection and displaying a notice in form 5." Under r. II, the registration officer is required to give further publicity to the roll and to the notice in form 5.
There after r. 12 provides for claims for the inclusion of a name in the roll and objections to an entry therein.
After such claims and objections have been made, the registration officer has to consider them under r. 18.
Under r. 19, he gives a hearing if necessary and thereafter he orders the inclusion of names in the roll or exclusion of ' names from the roll under r. 20.
Then under r. 22, the registration officer has to prepare a list of amendments to carry out his decisions under ff.
18, 20 and 21 and he may correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll.
He then publishes the roll together with the list of 550 amendments by making a complete copy thereof available for inspection, and displaying a notice in form 16.
On such publication the roll together with the list of amendments shall be the electoral roll of the constituency.
The scheme of these Rules therefore, is that a draft is first prepared.
Thereafter claims and objections are disposed of.
If any claim is admitted, the name is included in the roll, if any objection is allowed the name already in the draft roll (or may be in an earlier amendment) is deleted.
This inclusion or deletion is made by publishing amendments to the roll and thereafter the draft roll along with one or more amendments becomes the electoral roll of the constituency.
It will be seen from this that where a name is excluded on an objection being allowed, the name is not scored out.
What the rule provides is that deletion of a name from a draft or even from an earlier amendment made by inclusion by the registration officer, is included in the list of amendments published Under r. 23, an appeal is allowed from any decision of the registration officer including a name or excluding a name, so that where the registration officer includes a name after hearing a claim that is subject to an appeal and the appellate officer may reject the claim whereupon the amendment made by the registration officer by including a name may fall through.
Under sub r. (5) of r. 23 of the Rules, the registration officer is given power to cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the appellate officer.
This shows that when section 33 (5) requires that a copy of the relevant part of the roll may be filed or produced the copy is to be a complete copy along with all amendments, for it may be that even though a name may be included in the first amendment by the registration officer it may be excluded in the second amendment if the appellate officer has rejected the claim.
We have already said that the object of producing the copy under section 33(5) is to enable the returning officer to check whether the candidate and the proposer are qualified or not, one for the purpose of standing and the other for the purpose of proposing.
In order to check this, the returning officer must have a complete copy of the relevant part.
If the copy is not a complete copy it is possible that a name which may have been included in the draft or in the first amendment may have been excluded in the second amendment made on the basis of an order of the appellate officer.
Therefore to enable the returning officer to decide whether, a candidate,date is qualified to stand or whether a proposer is qualified to propose he must have a complete copy of the relevant part of the. roll.
If he has not a complete copy he will not be able to decide whether the candidate or the proposer has the necessary qualification.
In the present case it is not in dispute that Wazir Singh did not produce a complete copy of Part IV of the roll.
Part IV consisted 551 of 25 pages; of these Wazir Singh did not produce pages 19 to 22 and page as appears from the complete copy of the roll filed by the appellant contained a second list of amendments.
It is true that Wazir Singh 's name did appear in the first amendment at No. 1853; but that as we have already shown was not conclusive for the second amendment which was not produced might have deleted that name.
Therefore the copy produced by Wazir Singh not being complete was not sufficient to enable the returning officer to decide whether he was qualified to stand or not for his name might have been deleted in the second list of amendments in which case he would not have been qualified.
It is true that in actual fact it appears from the copy which was produced by the appellant before the Tribunal that Wazir Singh 's name was not deleted in the second list of amendments; but that appears from the copy produced by the appellant before the Tribunal and not from the copy produced by Wazir Singh before the returning officer.
Section 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that pur pose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof.
To such a case section 36(4) has no application.
That provision is to the effect that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character.
But the non production of a complete copy of the relevant part in our opinion is a defect of a substantial character for it makes it impossible for the returning officer to decide whether the candidate s qualified or not.
Qualification for standing for election is a matter of substantial character.
We are therefore of opinion that the High Court was not right in the view it took that the production of an incomplete copy of the relevant part was not a defect of a substantial character which would make the nomination paper liable to be rejected.
The fact that the returning officer rejected the nomination paper on some other ground is of no consequence.
If there was in truth a defect of a substantial character in the matter of compliance with section 33 of the Act, the nomination paper was liable to be rejected, and if it was so rejected, rejection would be proper whatever may have been the reason given by the returning officer.
In the present case we are of the opinion that the production of a copy of the electoral roll which is incomplete is a defect of a substantial character.
This defect will invalidate all the nomination papers.
The nomination papers of Wazir Singh were rightly rejected by the returning officer, though he gave different reasons for doing so.
The appeal therefore succeeds and is hereby allowed with costs.
The election petition is dismissed.
Pritam Singh, respondent, will pay the costs.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant 's election to Parliament was challenged by the first respondent on the ground that the nomination papers of the third candidate, W, had been wrongly rejected by the returning officer and this had materially affected the result of the election.
We had filed three nomination papers with one only of which he had filed a copy of the electoral roll of the assembly constituency in purported compliance with section 33(5) of the Representation of the People Act, 1950.
The nomination paper with which W had filed the said copy was rejected on account of technical defects; the other two were rejected because no such copy was filed with them.
The Election Tribunal dismissed the first respondent 's petition holding that the returning officer had rightly rejected the nomination papers of W.
The High Court took the opposite view and set aside the election.
The appellant came to this Court by certificate and contended that W had not complied with section 33(5) because (i) under that section a copy of the electoral roll must be produced with every nomination paper, (ii) W had filed a copy of the electoral roll of the assembly constituency and not of the Parliamentary constituency, (iii) the copy produced was not a complete copy of the relevant 'part ' of the electoral roll.
HELD : (i) The returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers filed by W when dealing with the other nomination papers filed by him.
Section 33(5) does not require that a copy must be filed with each nomination paper or that any copy should be filed at all, for the candidate is given the alternative to produce before the returning officer such copy at the time of scrutiny.
The purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers by the said candidate.
[547 F 548 D] (ii) The electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein.
Therefore if a candidate files a copy of the electoral roll of an assembly constituency that copy is sufficient to show that he is an elector in the parliamentary constituency in which that assembly constituency is included.
W had filed copy of the assembly constituency in which he was recorded as an elector and the High Court was right in rejecting the contention based on the fact that the copy of the roll of the parliamentary constituency was not filed.
[548 G, H] 544 (iii) Under r. 5 of the Registration of Electors Rules, 1960 it is provided that "the roll shall be divided into convenient parts which shall be numbered consecutively".
When a. 33(5) refers to a copy of the relevant parts of the electoral roll it means a part as defined in r. 5.
In producing not the full part but only a portion of the electoral roll in which he was recorded as an elector W did fail to comply with the requirements of section 33(5).
A complete copy would carry the various amendments made in the roll and enable the returning officer to see whether the name of the candidate continued in the roll for the whole of the relevant period.
The High Court was not right in its view that the production of an incomplete copy was not a defect of substantial character which would make the nomination paper liable to be rejected.
The nomination papers of W were rightly rejected by the returning officer though for different reasons.
[549 D; 551 E F]


judgement:
Appeal No. 7 of 1964.
Appeal from the judgment and decree dated January 7, 1955 of the Madras High Court in Appeal Suit No. 371 of 1959.
609 R. Ganapathy Iyer and R. Thiagarajan, for appellants.
In the suit which is the subject matter of this appeal the plaintiffs alleged that Plaint 'A ' Schedule properties belonged to the second defendant and his son, the third defendant.
The second defendant sold the village for Rs. 28,000/ to one Swaminatha Sarma by a sale deed exhibit A dated December 12, 1912 which he executed for himself and as guardian of the third defendant who was then a minor.
The second defendant also agreed to indemnify any loss that might be caused to his vendee in case the sale of his minor son 's half share should later on be set aside.
Accordingly the second defendant executed the Indemnity Bond exhibit
B in favour of Swaminatha Sarma.
The sons of Swaminatha Sarma sold Plaint 'A ' Schedule village to the father of the Plaintiffs for a sum of Rs. 53,000/ .
On the same date they assigned the Indemnity Bond exhibit
B to the father of the plaintiffs under an Assignment Deed exhibit
The third defendant after attaining majority filed O.S. No. 640 of 1923 in the Chief Court of Pudukottai for setting aside the sale deed exhibit
A in respect of his share and for partition of joint family properties.
The plaintiffs were impleaded as defendants 108 and 109 in that suit.
The suit was decreed in favour of the third defendant and the sale of his share was set aside on condition of his paying a sum of Rs. 7,000/ to defendants 108 and 109, and a preliminary decree for partition was also granted.
In further proceedings, the village was divided by metes and bounds and a final decree exhibit F was passed on October 6, 1936.
Meanwhile, a creditor of the third defendant obtained a money decree and in execution thereof, attached and brought to sale the third defendant 's half share in the 'A ' Schedule village.
In the auction sale Subbaiah Chettiar, the plaintiff 's brother in law purchased the property for a sum of Rs. 736/ subject to the liability for payment of Rs. 7,000/ under the decree in O.S. No. 640 of 1923.
Thereafter, the plaintiffs have brought the present suit on the allegation that they have sustained damage by the loss of one half of the 'A ' Schedule village and are entitled to recover the same from the second defendant personally and out of the 'B ' Schedule properties.
The plaintiffs have claimed damages to the extent of half of the consideration for the sale deed exhibit
C. minus Rs. 7,000/ withdrawn by them.
The plaintiffs claimed a further sum of Rs. 500/as Court expenses making a total of Rs. 20,000.
The suit was contested on the ground that the Court sale in favour of Subbaiah Chettiar was benami for the plaintiffs and the latter never lost ownership or possession of a half share of the 'A ' Schedule village and consequently the plaintiffs did not sustain any loss.
The trial court held that Subbaiah Chettiar P.W. I was benamidar of 610 the plaintiffs who continued to remain in possession of the whole village.
The trial court was, however, of the opinion that though the plaintiffs had, in fact, purchased the third defendant 's halfshare in the Court sale, they were not bound to do so and they could claim damages on the assumption that third parties had purchased the same.
The trial court accordingly gave a decree to the plaintiffs for the entire amount claimed and made the payment of the amount as charge on 'B ' Schedule properties.
The second defendant took the matter in appeal to the Madras High Court which found that the only loss actually sustained by the plaintiffs was the sum of Rs. 736/ paid for the Court sale and the sum of Rs. 500/ spent for the defence of O.S. No. 640 of 1923.
The High Court accordingly modified the decree of the trial court and limited the quantum of damages to a sum of Rs. 1236/ and interest at 6 per cent p.a. from the date of the suit.
The question presented for determination in this appeal is what is the quantum of damages to which the plaintiffs are entitled for a breach of warranty of title under the Indemnity Bond exhibit
B dated December 19, 1912.
It was contended by Mr. Ganapathy Iyer on behalf of the appellants that in O.S. No. 640 of 1923, defendant No. 3 obtained a partition decree and a declaration that defendant No. 2 was not entitled to allenate his share in the 'A ' Schedule properties.
It was submitted that on account of this decree the appellants lost title to half share of 'A ' Schedule properties and accordingly the appellants were entitled to get back half the amount of consideration under the Indemnity Bond exhibit
The argument was stressed on behalf of the appellants that the circumstance that the plaintiffs had a title of benamidar to the half share of the third defendant in Court auction, was not a relevant factor so far as the claim for damages was concerned.
It was suggested that the purchase in court auction was an independent transaction and the defendants ,could not take the benefit of that transaction.
We are unable to accept the contention of the appellants as correct.
In the present case it should be observed, in the first place, that the Indemnity Bond exhibit
B states that defendant No. 2 shall be liable to pay the amount of loss "in case the sale of the share of the said minor son Chidambaram is set aside and you are made to sustain any loss".
In the second place, it is important to notice that the sale deed exhibit
A executed by the second defendant in favour of Swaminatha Sarma was only voidable with regard to the share of the third defendant and the family properties.
The sale of the half share of defendant No. 3 was not void ab initio but it was only voidable if defendant No. 3 chose to avoid it and proved in Court that the alienation was not for legal necessity.
In a case of this description the Indemnity Bond becomes enforceable only if the vendee is dispossessed from the properties in dispute.
A breach of the 611 convenant can only occur on the disturbance of the vendee 's possession and so long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the Indemnity Bond or for the breach of a convenant of the warranty of title.
The view that we have expressed is borne out by the decision of the Madras High Court in Subbaroya Reddiar vs Rajagopala Reddiar (1) in which A who had a title to certain immovable property, voidable at the option of C, sold it to B and put B in possession thereof.
C then brought a suit against A and B, got a decree and obtained possession thereof in execution.
In this state of facts it was held by Seshagiri Ayyar, J. that B 's cause of action for the return of the purchase money arose not on the date of the sale but on the date of his dispossession when alone there was a failure of consideration and the article applicable was article 97 of the Limitation Act.
At page 889 of the Report Seshagiri Ayyar, J. states: "The cases can roughly speaking be classified under three heads: (a) where from the inception the vendor had no title to convey and the vendee has not been put in possession of the property; (b) where the sale is only voidable on the objection of third parties and possession is taken under the voidable sale; and (c) where though the title is known to be imperfect, the contract is in part carrried out by giving possession of the properties.
In the first class of cases, the starting point of limitation will be the date of the sale.
That is Mr. Justice Bakewell 's view in [Ramanatha Iyer vs Ozhapoor Pathiriseri Raman Namburdripad ; and I do not think Mr. Justice Miller dissents from it.
However, the present case is quite.
different.
In the second class of cases the cause of action can arise only when it is found that there is no good title.
The party is in possession and that is what at the outset under a contract of sale a purchaser is entitled to, and so long as his possession is not disturbed, he is not damnified.
The cause of action will therefore arise when his right to continue in possession is disturbed.
The decisions of the Judicial Committee of the Privy Council in Hanuman Kamat vs Hanuman Mandur (I Cal.
123 (P.C.) and in Bassu Kuar vs Dhum Singh (I 889) I.L.R. II All.
47 (P.C.) are authorities for this position.
" A similar view has been expressed by the Allahabad High Court in Muhammad Siddiq vs Muhammad Nuh (2) and the Bombay High Court in Gulabchand Daulatram vs Survajirao Ganpatrao.(3) In the present case it has been found by the High Court that P.W. 1, the auction purchaser was the brother in law of the plaintiffs (1) I.L.R. (2) I.L.R. 52 All. 604.
(3) A.I.R. 1950 Bom.
612 and that he was managing the estate of the plaintiffs and defending O.S. 640 of 1923 on their behalf It has also been found that P.W. I did not take possession at any time and plaintiffs have been cultivating and enjoying the whole village all along and at no time were the plaintiffs dispossessed of the property.
The only loss sustained by the plaintiffs was a sum of Rs. 736/ paid at the Court sale and a sum of Rs. 5001 spent for the defence of O.S. No. 640 of 1923 which the plaintiffs had to incur for protecting the continuance of their possession over the disputed share of land.
Accordingly the High Court was right in granting a decree to the plaintiffs only for a sum of Rs. 1236/ which was the actual loss sustained by them and they are not entitled to any further amount.
For these reasons we hold that there is no merit in this appeal which is dismissed with costs.
Appeal dismissed.

summary:
The second defendant sold property belonging to himself and his minor son the third defendant.
and also executed an indemnity bond in favour of the vendee agreeing to indemnify him for any loss that might be caused to him in case the sale of the third defendant 's half share should later on be set aside.
vendee sold the property to the plaintiffs and assigned the indemnity bond in their favour and the plaintiffs took possession of the property.
The third defendant, after attaining majority, sued for ,setting aside the sale in respect of his half share and for partition.
The plaintiffs contested the suit but the third defendant 's suit was decreed.
He, however, did not dispossess the plaintiffs.
Meanwhile, a creditor of .the third defendant obtained a money decree against him and in execution ,thereof attached and brought to sale the third defendant 's half share, and, ,the brother in Law of the plaintiffs purchased the property, but ,the plaintiffs continued in possession of the property.
The plaintiffs, thereafter, filed the suit for recovery of half the consideration paid by them, on the allegation that they sustained damage by the loss of one half of the property bought by them, and that they were entitled to recover damages from the second defendant.
The suit was contested on the ground that the court sale in favour of the brothers in law of the plaintiffs was benami for the plaintiffs, and that as the plaintiffs never lost ownership or possession of the halfshare, they did not sustain any loss.
.The trial court decreed the suit.
The High Court, on appeal, confined the decree to the actual loss sustained, namely, the amount for the court sale and the amount spent for the defence of the third defendant 's suit.
In appeal to the Court, on the question of the quantum of damages to which the plaintiffs were entitled, HELD : High Court was right in granting a decree to, the plaintiffs only for the sum which was the actual loss sustained by them.
The sale of the half share of the third defendant was not void ab initio but was only voidable.
In such a case the indemnity bond becomes enforceable only if the vendee is dispossesed from the properties, because, a breach of the covenant can only occur on the disturbance of the vendees possession.
SD long as the vendee remains in possession, he suffers no loss and no suit can be brought for damages either on the basis of the indemnity bond or for the breach of a convenant of the warranty of title.
[610 H 611 B] Subbaroya Reddiar vs Rajagopala Reddiar, Mad. 887 Muhammad Siddiq vs Muhammad Nuh, I.L.R. 52 All. 604 and Gulabchand Daulatram vs Suryaji Rao Ganpatrao, A.I.R. 1950 Bom.
401, approved.


judgement:
minal Appeal No . 167 of 1964.
Appeal from the judgment and order November 4, 1963 of the Gujarat High Court in Criminal Appeal No. 734 of 1962.
G. section Patwardhan, R. N. Sachthey and B.R.G.K. Achar, for the appellant.
The respondent did not appear.
614 The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by the State of Gujarat against the judgment of the High Court of Gujarat at Ahmeda bad dated November 4, 1963 in Criminal Appeal No. 734 of 1962.
The respondent was charged in the Court of the Judicial Magistrate First Class, Bulsar under sections 4 and 5 of the Bombay Prevention of Gambling Act, 1887 (Bombay Act IV of 1887), hereinafter called the 'Act '.
The case of the prosecution was that on January 31, 1962 at about 9 p.m. the respondent was found accepting bets on American futures.
On being searched in the presence of panchas currency notes of Rs. 119/ and two slips on which Ameri can futures were recorded were found.
The trying Magistrate, however, held that slips were not "instruments of gaming" within ,the meaning of section 7 of the Act.
The Magistrate was also not satisfied that the police officer who carried out the search and .seized the articles had reasonable grounds to believe that the slips and other articles recovered from the respondent were instruments of gaming.
The Magistrate held that the presumption under section 7 of the Act could not be raised.
The respondent was, therefore, acquitted of the charge.
Against the order of acquittal the State of Gujarat preferred an appeal to the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 734 of 1962.
The appeal was dismissed by Raju, J. on November 4, 1963.
In support of this appeal Mr. Patwardhan submitted that the High Court was in error in holding that it is necessary to examine an expert to corroborate the evidence of the prosecuting Sub Inspector that the articles seized were "instruments of gaming".
It was also contended by Counsel that the High Court was not right in taking the view that the evidence of the Police Inspector to whom the warrant was issued under section 6 of the Act required corroboration in each and every case.
In our opinion, both the contentions of Mr. Patwardhan are well founded and must be Section 3 of the Act defines the expression "instruments of gaming" as including any article used or intended to be used as a subject or means of gaming, any document used or intended to be used as a register or record or evidence of any gaming, the proceeds of any gaming, and any winnings or prizes in money or ,otherwise distributed or intended to be distributed in respect of ,any gaming.
Section 6 provides for entry and search by police officers in gaming houses.
Section 6(1) states: "6.
(1) It shall be lawful for a Police Officer (i) in any area for which a Commissioner of Police has been appointed not below the rank of a Sub Inspector and either empowered by general order in writing or 615 authorized in each case by special warrant issued by the Commissioner of Police, and (ii) elsewhere not below the rank of a Sub Inspector of Police authorised by special warrant issued in each case by a District Magistrate or Sub Divisional Magistrate or by a Taluka Magistrate specially empowered by the State Government in this behalf or by a Superintendent of Police or by an Assistant or Deputy Superintendent of Police especially empowered by the State Government in this behalf, and (iii) without prejudice to the provision in clause (ii) above, in such other area as the State Government may, by notification in the Official Gazette, specify in this behalf, not below the rank of a Sub Inspector and empowered by general order in writing issued by the District Magistrate.
(a) to enter, with the assistance of such persons as may be found necessary, by night or by day, and by force, if necessary, any house, room or place which he has reason to suspect is used as a common gaming house.
(b) to search all parts of the house, room, or place which he shall have so entered, when he shall have reason to suspect that any instuments of gaming are concealed therein, and also the persons whom he shall find therein whether such persons are then actually gaming or not, (c) to take into custody and bring before a Magistrate all such persons, (d) to seize all things which are reasonably suspected to have been used or intended to be used for the purpose of gaming, and which are found therein: Section 7 of the Act relates to presumptive proof of keeping or gaming in common gaming house.
Section 7 provides as follows: "7.
When any instrument of gaming has been seized in any house, room or place entered under section 6 or about the person of anyone found therein, and in the case of any other thing so seized if the court is satisfied that the Police officer who entered such house, room or place had reasonable grounds for suspecting that the thing so seized was an instrument of gaming, the seizure of such instrument or thing shall be evidence, until the contrary is proved, that such house, room or place is used as a common gaming house and the persons found therein were then present for the purpose of gaming, although no gaming was actually seen 616 by the Magistrate or the Police officer or by any person acting under the authority of either of them: There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gaming" it is the duty of the prosecution to examine an expert in every case.
It is open to the prosecution to prove that the articles seized are instruments of gaming by proper evidence and it is, not necessary to examine an expert for the purpose in each and every case.
It is also not proper to make a distinction between the evidence of an officer who makes a complaint under the proviso to section 6 of the Act and to whom a warrant is issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso.
The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to section 6 of the Act to the Commissioner of Police or to the Magistrate.
We do not, however, propose to interfere with the order of acquittal in this case, because the offence is petty and the offence was committed several years back.
We accordingly dismiss the appeal.
Appeal dismissed.

summary:
The respondent was charged under sections 4 and 5 of the Bombay Prevention of Gambling Act, on the allegation that be was found accepting bets on American futures, and on being searched currency notes and two slips, on which American Futures wore recorded, were found.
The trial, Magistrate acquitted the respondent, which was confirmed, on appeal, by the High Court.
In appeal to this Court the appellant State contended that it was not necessary to examine an expert to corroborate the evidence of the prosecuting sub Inspector that the articles seized were "instruments of gaming" and that the evidence of the Police Inspector to whom the warrant was issued under section 6 of the Act did not require corroboration, in each and .very case.
HELD : The contentions are well founded and must be accepted as correct.
There is nothing in the Act to suggest that in order to prove that the articles seized are "instruments of gamine ' it is the duty of the prosecution to examine an expert in every case.
It is open to the prosecution to prove that the articles seized are instruments of gamiag by proper evidence and it is not necessary to examine an expert for the purpose in each and every case.
It is also not proper to make a distinction between the evidence of an officer who makes a complaint under the proviso to section 6 of the Act and to whom a warrant issued for search and the evidence of a person to whom a warrant is issued but who makes no such complaint under the proviso.
The question as to whether the evidence of the person who executes the warrant requires corroboration depends on the facts and circumstances of each case and no legal distinction, can be made merely because the person who executes the warrant happens to be the person who makes the complaint under the proviso to section 6 of the Act to the Com missioner of Police or to the Magistrate.
[616 A C]