judgement:
8209 & 8821 of 83.
Under Article 32 of the Constitution of India) M.K. Ramamurthi B. Dutta, Anil Divan, Dr. L.M. Singhvi, O.P Rana, S.N Kackar, M.C. Bhandare, Shanti Bhushan.
Milan K. Banerji, Additional Solicitor General, M.A. Krishnamoorthy, Rishi Kesh, K.N Bhat, M.G. Ramachandran, Miss A. Subhashini, K.K. Jain.
A.D. Sangar, P. Dayal, C.V Subba Rao, Raju Ramachandran S.M. Suri R.N. Mehrotra, S.M. Suri, C.M. Nayyar, Harjinder Singh, G.N. Rao, M. Karanjawala, Shakeel Ahmed Syed, S.K. Jain, Mrs. Shobha Dikshit, P.P. Juneja, P.K Jain, J.B.D. & Co., Indra Makwana, A. SubbaRao, B.P. Singh, Parijat Sinha, C.P. Lal, Shri Narain, S.K. Gupta, K.R. Namiar, S.S. Jauhar, D. M. Nargolkar, Mrs Rani Chhabra, Kapil Sibbal, B.P. Maheshwari, R.P. Singh, S.A. Syed for the appearing parties.
The Judgment of the Court was delivered BHAGWATI, J.
This case has been argued at great length before us not only because a large number of lessees of lime stone quarries are involved and each of them has pains takingly and exhaustively canvassed his factual as well as legal points of view but also because this is the first case of its kind in the country involving issues relating to environment and ecological balance and the questions arising for considerations are of grave moment and significance not only to the people residing in the Mussoorie 173 Hill range forming part of the Himalayas but also in their implications to the welfare of the generality of people living in the country.
It brings into sharp focus the conflict between development and conservation and serves to emphasise the need for reconciling the two in the larger interest of the country.
But since having regard to the voluminous material placed before us and the momentous issues raised for decision, it is not possible for us to prepare a full and detailed judgment immediately and at the same time, on account of interim order made by us, mining operations carried out through blasting have been stopped and the ends of justice require that the lessees of lime stone quarries should know, without any unnecessary delay, as to where they stand in regard to their lime stone quarries, we propose to pass our order on the writ petitions.
The reasons for the order will be set out in the judgment to follow later.
We had by Order dated 11th August 1983 appointed a Committee consisting of Shri D.N. Bhargav, Controller General, Indian Bureau of Mines, Nagpur, Shri M.S. Kahlon, Director General of Mines Safety and Col. P. Mishra, Head of the Indian Photo Interpretation Institute (National Remote Sensing Agency) for the purpose of inspecting, the lime stone quarries mentioned in the writ petition as also in the list submitted by the Government of Uttar Pradesh.
This Committee which we shall hereinafter for the sake of convenience refer to as the Bhargav Committee, submitted three reports after inspecting most of the lime stone quarries and t divided the lime stone quarries into three groups.
The lime stone quarries comprised in category were those where in the opinion of the Bhargav Committee the adverse impact of the mining operations was relatively less pronounced; category comprised those lime stone duarries where in the opinion of the Bhargav Committee the adverse impact of mining operations was relatively more pronounced and category covered those lime stone quarries which had been directed to be closed down by the Bhargav Committee under the orders made by us on account of deficiencies regarding safety and hazards of more serious nature.
It seems that the Government of India also appointed a working Group on Mining of Lime Stone Quarries in Dehradun Mussoorie area, some time in 1983.
The Working Group was also headed by the same Sh.
D.N. Bhargav who was a member 174 of the Bhargav Committee appointed by us.
There were five other members of the Working Group along with Shri D.N. Bhargav and one of them was Dr. S.Mudgal who was at the relevant time Director in the Department of Environment, Government of India and who placed the report of the Working Group before the Court along with his affidavit.
The Working Group in its report submitted in September 1983 made a review of lime stone quarry leases for continuance or discontinuance of mining operations and after a detailed consideration of various aspects recommended that the lime stone quarries should be divided into two categories, namely category 1 and category 2; category 1 comprising lime stone quarries considered suitable for continuance of mining operations and category 2 comprising lime stone quarries which were considered unsuitable for further mining.
It is interesting to note that the lime stone quarries comprised in category of the Bhargav Committee Report were the same lime stone quarries which were classified in category 1 by the Working Group and the lime stone quarries in categories and of the Bhargav Committee Report were classified in category 2 of the Report of the Working Group.
It will thus be seen that both the Bhargav Committee and the Working Group were unanimous in their view that the lime stone quarries classified in category by the Bhargav Committee Report and category 1 by the Working Group were suitable for continuance of mining operations.
So far as the lime stone quarries in category of the Bhargav Committee Report are concerned, they were regarded by both the Bhargav Committee and the Working Group as unsuitable for continuance of mining operations and both were of the view that they should be closed down.
The only difference between the Bhargav Committee and the Working Group was in regard to lime stone quarries classified in category B. The Bhargav Committee Report took the view that these lime stone quarries need not be closed down, but it did observe that the adverse impact of mining operations in these lime stone quarries was more pronounced, while the Working Group definitely took the view that these lime stone quarries were not suitable for further mining.
While making this Order we are not going into the various remifications of the arguments advanced before us but we may 175 observe straight away that we do not propose to rely on the Report of Prof. K section Valdia, who was one of the members of the Expert Committee appointed by us by our Order dated 2nd September 1983, as modified by the Order dated 25th October 1983.
This Committee consisted of Prof. K.S. Valdia, Shri Hukum Singh and Shri D.N. Kaul and it was appointed to enquire and investigate into the question of disturbance of ecology and pollution and affectation of air, water and environment by reason of quarrying operations or stone crushers or lime stone kilns.
Shri D.N. Kaul and Shri Hukum Singh submitted a joint report in regard to the various aspects while Prof. K.S. Valdia submitted a separate report.
Prof. K.S. Valdia 's Report was confined largely to the geological aspect and in the report he placed considerable reliance on the Main Boundary Thrust (hereinafter shortly referred to as M.B.T.) and he took the view that the lime stone quarries which were dangerously close to the M.B.T. should be closed down, because they were in this sensitive and vulnerable belt.
We shall examine this Report in detail when we give our reason but we may straight away point out that we do not think it safe to direct continuance or discontinuance of mining operations in lime stone quarries on the basis of the M.B.T. We are therefore not basing our conclusions on the Report of Prof. K.S. Valdia but while doing so we may add that we do not for a moment wish to express any doubt on the correctness of his Report.
We shall also examine in detail the question as to whether lime stone deposits act as aquifers or not.
But there can be no gain saying that lime stone quarrying and excavation of the lime stone deposits do seem to affect the perennial water springs.
This environmental disturbance has however to be weighed in the balance against the need of lime stone quarrying for industrial purposes in the country and we have taken this aspect into account while making this order.
We are clearly of the view that so far as the lime stone quarries classified in category in the Bhargav Committee Report are concerned which have already been closed down under the directions of the Bhargav Committee, should not be allowed to be operated.
If the leasees of these lime stone quarries have obtained any stay order from any court permitting them to continue the mining operations, such stay order will stand dissolved and if there 176 are any subsisting leasees in respect of any of these lime stone quarries they shall stand terminated without any liability against the State of Uttar Pradesh.
If there are any suits or writ petitions for continuance of expired or unexpired leases in respect of any of these lime stone quarries pending, they will stand dismissed.
We would also give the same direction in regard to the lime stone quarries in the Shasradhara Block even though they are placed in category by the Bhargav Committee.
So far as these lime stone quarries in Sahasradhara Block are concerned, we agree with the Report made by the Working Group and we direct that these lime stone quarries should not be allowed to be operated and should be closed down forthwith.
We would also direct, agreeing with the Report made by the Working Group that the lime stone quarries placed in category 2 by the Working Group other than those which are placed in categories and by the Bhargav Committee should also not be allowed to be operated and should be closed down save and except for the lime stone quarries covered by mining leases Nos. 31, 36 and 37 for which we would give the same direction as we are giving in the succeeding paragraphs in regard to the lime stone quarries classified as category in the Bhargav Committee Report.
If there are any subsisting leases in respect of any of these lime stone quarries they will forthwith come to an end and if any suits or writ petitions for continuance of expired or unexpired leases in respect of any of these lime stone quarries are pending, they too will stand dismissed.
So far as the lime stone quarries classified as category in the Bhargav Committee Report and/or category 1 in the Working Group Report arc concerned, we would divide them into two classes, one class consisting of those lime stone quarries which are within the city limits of Mussoorie and the other consisting of those which are outside the city limits.
We take the view that the lime stone quarries falling within category of the Bhargav Committee Report and/or category 1 of the Working Group Report and falling outside the city limits of Mussoorie, should be allowed to be operated subject of course to the observance of the requirements of the , the Metallferous Mines Regulations, 1961 and other relevant statutes, rules and regulations.
Of course when we say this we must make it clear 177 that we are not holding that if the leases in respect of these lime stone quarries have expired and suits or writ petitions for renewal of the leases are pending in the courts, such leases should be automatically renewed.
It will be for the appropriate courts to decide whether such leases should be renewed or not having regard to the law and facts of each case.
So far as the lime stone quarries classified in category in the Bhargav Committee Report and or category 1 in the Working Group Report and falling within the city limits of Mussoorie are concerned, we would give the same direction which we are giving in the next succeeding paragraph in regard to the lime stone quarries classified as category in the Bhargav Committee Report.
That takes us to the lime stone quarries classified as category in the Bhargav Committee Report and category 2 in the Working Group Report.
We do not propose to clear these lime stone quarries for continuance of mining operations nor to close them down permanently without further inquiry.
We accordingly appoint a high powered Committee consisting of Mr. D. Bandyopadhyay, Secretary, Ministry for Rural Development as Chairman and Shri H.S. Ahuja.
Director General, Mines Safety, Dhanbad, Bihar, Shri D.N. Bhargav, Controller General, Indian Bureau of Mines, New Secretariat Building, Nagpur and two experts to be nominated by the Department of environment, Government of India within four weeks from the date of this Order.
The lessees of the lime stone quarries classified as category in Bhargav Committee Report and for Category 1 in the working Group Report and falling within the city limits of Mussoorie as also the lessees of the lime stone quarries classified as category in the Bhargav Committee Report will be at liberty to submit a full and detailed scheme for mining their lime stone quarries to this Committee (hereinafter called the Bandyopadhyay Committee) and if any such scheme or schemes are submitted the Bandyopadhyay Committee will proceed to examine the same without any unnecessary delay and submit a report to this Court whether in its opinion the particular lime stone quarry can be allowed to be operated in accordance with the scheme and if so, subject to what conditions and if it cannot be allowed to be operated, the reasons for taking that view.
The Bandyopadhyay Committee in making its report will take into account the various aspects which we had directed the Bhargav Committee and the Kaul Committee to consider while making their respective reports including 178 the circumstance that the particular lime stone quarry may or may not be within the city limits of Mussoorie and also give an opportunity to the concerned lessee to be heard, even though it be briefly.
The Bandyopadhyay Committee will also consider while making its report whether any violations of the provisions of the , the Metalliferous Mines Regulations, 1961 and other relevant statutes, rules and regulations were committed by the lessee submitting the scheme or schemes and if so, what were the nature, extent and frequency of such violations and their possible hazards.
The Bandyopadhyay Committee will also insist on a broad plan of exploitation coupled with detailed mining management plans to be submitted along with the scheme or schemes and take care to ensure that the lime stone deposits are exploited in a scientific and systematic manner and if necessary, even by two or more lessees coming together and combining the areas of the lime stone quarries to be exploited by them.
It should also be the concern of the Bandyopadhyay Committee while considering the scheme or schemes submitted to it and making its report, to ensure that the lime stone on exploitation is specifically utilised only in special industries having regard to its quality and is not wasted by being utilised in industries for which high grade lime stone is not required.
The necessary funds for the purpose of meeting the expenses which may have to be incurred by the members of the Bandyopadhyay Committee will be provided by the State of Uttar Pradesh including their travelling and other allowances appropriate to their office.
The State of Uttar Pradesh will also provide to the members of the Bandyopadhyay Committee necessary transport and other facilities for the purpose of enabling them to discharge their functions under this Order.
If any notice, are to be served by the Bandyopadhyay Committee the District Administration of Dehradun will provide the necessary assistance for serving of such notices on the lessees or other interested parties.
The Bandyopadhyay Committee will also be entitled before expressing its opinion on the scheme or schemes submitted to it, to hear the petitioner, the interventionists in this case and such other persons or organisations as may be interested in maintenance and preservation of healthy environment and ecological balance.
The Indian Bureau of Mines will provide secretarial facilities to the Bandyopadhyay Committee.
The report submitted by the Bandyopadhyay Committee in each case will be considered by the Court and a decision will then be taken whether the limit stone quarry or quarries in respect of which the report has been 179 made should be allowed to be operated or not.
But until then these lime stone quarries will not be allowed to be operated or worked and the District Authorities of Dehradun will take prompt and active steps for the purpose of ensuring that these lime stone quarries are not operated or worked and no mining activity is carsied on even clandestinely.
This order made by us will supersode any stay or any other interim order obtained by the lessee of any of these lime stone quarries permitting him to carry on mining operations and notwithstanding such stay order or other interim order or subsisting lease, the lessees shall not be entitled to carry on any mining activity whatsoever in any of these lime stone quarries and shall desist from doing so.
The lessees of these limestone quarries will also not in the meanwhile be permitted to rectify the defects pointed out in the orders issued by the District Mining authority but they may include the proposal for which rectification in the scheme or schemes which they may submit to the Bandyopadhyay Committee.
We may however make it clear that non rectification of the defects pursuant to the notices issued by the District Mining authorities shall not be taken advantage of by the State of Uttar Pradesh as a ground for terminating the lease or leases.
We may point out that so far as the lime stone quarries at Sl.
Nos. 1 7 to 20 in category in the Bhargav Committee Report are concerned we are informed that they have already been closed down and no further direction therefore is necessary to be given in regard to them save and except in regard to removal of the lime stone, dolomite and marble chips which may have already been mined and which may be lying at the site for which we are giving separate directions in one of the succeeding paragraphs in this order.
The consequence of this Order made by us would be that the lessees of lime stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, would be thrown out of business in which they have invested large sums of money and expanded considerable time and effort.
This would undoubtedly cause hardship to the but It is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal H 180 disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affectation of air, water and environment However, in order to mitigate their hardship, we would direct the Government of India and the State of Uttar Pradesh that whenever any other area in the State of Uttar Pradesh is thrown open for grant of lime stone or dolomite quarrying, the lessees who are displaced as a result of this order shall be afforded priority in grant of lease of such area and intimation that such area is available for grant of lease shall be given to the lessees who are displaced so that they can apply for grant of lease of such area and on the basis of such application, priority may be given to them subject, of course, to their otherwise being found fit and eligible.
We have no doubt that while throwing open new areas for grant of lease for lime stone or dolomite quarrying, the Government of India and the State of Uttar Pradesh will take into account the considerations to which we have averted in this order.
We are conscious that as a result of this Order made by us, the workmen employed in the lime stone quarries which have been directed to be closed down permanently under this Order or which may be directed to be closed down permanently after consideration of the report of the Bandopadhyay Committee, will be thrown out of employment and even those workmen who are employed in the lime stone quarries which have been directed to be closed down temporarily pending submission of scheme or schemes by the lessees and consideration of such scheme or schemes by the Bandyopadhyay Committee, will be without work for the time being.
But the lime stone quarries which have been or which may be directed to be closed down permanently will have to be reclaimed and afforestation and soil conservation programme will have to be taken up in respect of such lime stone quarries and we would therefore direct that immediate steps shall be given for reclamation of the areas forming part of such limestone quarries with the help of the already available Eco Task Force of the Department of Environment, Government of India and the workmen who are thrown out of employment in consequence of this Order shall, as far as practicable and in the shortest possible time, be provided employment in the afforestation and soil conservation programme to be taken up in this area.
There are several applications before us for removal of lime 181 stone, dolomite and marble chips mined from the quarries and lying at the site and these applications also are being disposed of by this Order.
So far as lime stone quarries classified as category in the Bhargav Committee Report and for category 1 in the Working Group Report and falling outside the city limits of Mussorrie are concerned, we have permitted the lessees of these lime stone quarries to carry on mining operations and hence they must be allowed to remove whatever minerals are lying at the site of these lime stone quarries without any restriction whatsoever, save and except those prescribed by any statutes, rules or regulations and subject to payment of royalty.
So far as the other lime stone quarries are concerned, whether comprised in category of Bhargav Committee Report or category 1 of the Working Group Report and falling within the city limits of Mussorrie or falling within category or category of the Bhargav Committee Report or category 2 of the Working Group Report, there is a serious dispute between the lessees of these lime stone quarries on the hand and the petitioners and the state of Utter Pradesh on the other as to what is the exact quantity of minerals mined by the lessees and lying at the site.
We had made an order on 15th December 1983 requiring the District Magistrate Dehradun to depute some officer either of his Department or of the Mining Department to visit the site of these lime stone quarries for the purpose of assessing the exact quantity of lime stone lying there and to report in this connection.
The District Magistrate, Dehradun deputed the Sub Divisional Magistrates of Mussoorie and Tehsildar (Quarry) Dehradun to inspect the 20 stone quarries comprised in category of the Bhargav Committee Report which had been ordered to be closed down under the directions of the Bhargav Committee and an affidavit was filed on behalf of the District Magistrate Dehradun, by Kedar Singh Arya, Tehsildar (Quarry) Dehradun, annexing a chart showing the details of the minerals mined by the lessees of those lime stone quarries and lying at the site.
Thereafter, when again the case came up for hearing before us an 5th January 1984, we, in order to allay any apprehensions on the part of the lessees that the District Authorities had not done their job correctly in assessing the quantity of minerals lying at the site, appointed a Committee of two officers, namely, Shri D. Bandophadyay and Director of Geology (Mines) Lucknow for the purpose of visiting the time stone quarries which had been directed to be closed down and to assess the quantity of minerals lying on the site of those limestone quarries 182 after giving notice to the concerned lessees as also to the District Magistrate Dehradun and the representatives of the petitioners.
Pursuant to this order made by us, Shri D, Bandhopadhyay and the Director of Guology (Mines) Lucknow visited the lime stone quarries comprised in category of the Bhargav Committee Report and directed to be closed down and assessed the quantity of minerals lying at the site of each of these lime stone quarries.
The quantity of minerals lying at the site, a cording to Shri D. Bandopadhyay and the Director of Geology (Mines), was very much less than what was claimed by the lessees and it does appear that though these lime stone quarries were directed to be closed down, illegal mining was being carried on clandestinely, because otherwise it is difficult to understand how the figures of the quantity of the minerals lying at the site as assessed in December.
1983 by the District Authorities became inflated when Shri D. Bandophadyay and Director of Geology (Mines) made their assessment in January 1984 and thereafter the figures again got inflated if the quantity now claimed by the lessees as lying on the site is correct.
We do not, however, propose to go into the question as to what was the precise quantity of minerals mined by the lessees of these limestone quarries and lying at the site at the time when these lime stone quarries were closed down under the directions of the Bhargav Committee.
We would permit the lessees of these lime stone quarries to remove whatever minerals are found lying at the site or its vicinity provided and of course such minerals are covered by their respective leases or quarry permits.
Such removal will be carried out and completed by the lessees within four weeks from the date of this Order and it shall be done ill the presence of an officer not below the rank of Deputy Collector to be nominated by the District Magistrate, Dehradun, a gazetted officer from the Mines Department nominated by the Director of Mines and a public spirit individual in Dehradun, other than Mr. Avdesh Koushal, to be nominated by Shri D. Bandopadhyay.
These nomination shall be made within one week from today and they may be changed from time to time depending on the exigencies of the situation.
Notice of intended removal of minerals lying at the site shall be given by the lessees to the District Magistrate Dehradun, Director of Mines Dehradun and the person nominated by Shri D. Bandophadyay.
No part of the minerals lying at the site shall be removed by the lessees except in the presence of the above mentioned three persons.
The lessees will on the expiry of the period of four weeks 183 submit a report to this Court setting out the precise quantities of minerals removed by them from the site pursuant to this Order made by us.
The lessees shall not be entitled to remove any minerals after the expiration of the period of four weeks.
Before we close we wish to express our sense of appreciation for the very commendable assistance rendered to us by Shri Pramod Dayal, learned advocate appearing on behalf of some of the lessees.
He undertook the responsibility of arranging the various affidavits and written submissions in a proper and systematic manner and we must confess that but for the extremely able assistance rendered by him, it would not have been possible for us to complete the hearing of this case satisfactorily and to pass this order within such a short time.
We would direct that the Government of India and the State of Uttar Pradesh should each pay a sum of Rs. 5,000 to Shri Pramod Dayal for the work done by him.
We may point out that this payment to Shri Pramod Dayal is not in lieu of costs but is an additional remuneration which we are directing to be paid in recognition of the very valuable assistance rendered by him to the Court.

dataset_name: IN-Abs

summary:
The present Writ Petitions relate to the mining of lime stone quarries in Dehradun mining area.
During the pendency of the Writ Petitions, the Court appointed a Committee known as Bhargav Committee for the purpose of inspecting the lime stone quarries mentioned in the writ petitions, The Government of India had also appointed a Working Group headed by the same Sh.
D.N. Bhargav who was a member of the Bhargav Committee appointed by the Court on mining of lime stone quarries in Dehradun Mussoorie area, some time in 1983.
After the hearing was over, the Court passed the following order on the Writ Petitions observing that the reasons for the order will be set out in the judgment to follow later.
The Court is clearly of the view that so far as the lime stone quarries classified in category (c) in the Bhargav Committee Report are concerned, which have already been closed down under the directions of the Bhargav Committee, should not be allowed to be operated.
If the lessees of these lime stone quarries have obtained any stay order from any court permitting them to continue the mining operations, such stay order will stand dissolved an if there are any subsisting leases in respect of any of these lime stone quarries, they shall stand terminated without any liability against the State of Uttar Pradesh.
The lime stone quarries in Sahasradhara Block even though they are placed in category (b) by the Bhargav Committee should also not be allowed to be operated and should be closed down forthwith.
The Court would also direct, agreeing with the Report made by the Working Group that the lime stone quarries placed in category (2) by the Working Group other than those which are placed in categories (B) and (C) by the Bhargav Committee should also not be allowed to be operated and should be closed down save and except for the lime stone quarries covered by mining leases Nos. 31, 36 and 37 for which the Court would give the same direction as will H be given in regard to the lime stone quarries classified as category B in the 170 Bhargav Committee Report.
If there are subsisting leases in respect of any of these lime stone quarries they will forthwith come to an end and if any suits or writ petitions for continuance of expired or unexpired leases in respect of any of these lime stone quarries are pending, they too will stand dismissed.
[175G H; 176A] (2) So for as the lime stone quarries classified as category in the Bhargav Committee Report and/or category I in the Working Group Report are concerned, they are divided into two classes, one class consisting of those which are within the city limits of Mussorie and the other consisting of those which are outside the city limits.
The lime stone quarries falling within category of the Bhargav Committee Report and/or Category 1 of the Working Group Report and falling outside the city limits of Mussorie, should be allowed to be operated subject of course to the observance of the requirements of the Mill`i Act 1952, the Metalliferous Mines Regulations, 1961 and other relevant statutes, rules and regulations.
Of course, it must be made clear that the Court is not holding that if the leases in respect of these lime stone quarries have expired and suits or writ petitions for renewal of the leases are pending in the courts, such leases should be automatically renewed.
It will be for the appropriate courts to decide whether such leases should be renewed or not having regard to the law and facts of each case.
So far as the lime stone quarries classified in category in the Bhargav Committee Report and/or cat gory 1 in the Working Group Report and falling within the city limits of Mussorie are concerned, the Court would give the same direction which is it giving in regard the lime stone quarries classified as category B in the Bhargav Committee Report.
[176F H 177A C] The Court does not propose to clear the lime stone quarries classified as category (B) in the Bhargav Committee Report and category 2 in the Working Group Report for continuance of mining operations nor to close them down permanently without further inquiry, and accordingly appoint a high powered Committee to be headed by Mr. Bandyopadhyay, Secretary, Ministry for Rural Development as Chairman.
The lessees of the lime stone quarries classified as category in Bhargav Committee Report and/or Category I in the Working Group Report and filling within the city limits of Mussoorie as also the lessees of the lime stone quarries classified as category in the Bhargav Committee Report will be at liberty to submit a fully and detailed scheme for mining their lime stone quarries to this Committee (hereinafter called the Bandyopadhyay Committee) and if any such scheme or schemes are submitted, the Bandyopadhyay Committee will proceed to examine the same without any unnecessary delay and submit a report to this Court whether in its opinion the particular lime stone quarry can be allowed to be operated in accordance with the 'scheme and if so, subject to what conditions and if it can not be allowed to be operated, the reasons for taking that view.
The report submitted by the Bandyopadhyay Committee in each case will be considered by the Court and a decision will then be taken whether the lime stone quarry or quarries in respect of which the Report has been made should be allowed to be operated or not.
But until then those lime stone quarries will not be allowed to be operated or worked and the District Authorities of Dehradun will take prompt and active steps for the purpose of ensuring that these lime 171 stone quarries are not operated or worked and no mining activity is carried on even clandestinely.
[177D H; 178D H: 179A] 4.
So far as the lime stone quarries at Sl.
17 to 20 in the category in the Bhargav Committee Report are concerned, they have already been closed down and no further direction therefore is necessary to be given in regard to them save and except in regard to removal of the lime stone, dolomite and marble chips which may have already been mined and which may be lying at the site.
[179E F] 5(i) So far as lime stone quarries classified as category in the Bhargav Committee Report and/or category I in the Working Group Report and falling side the city limits of Mussoorie are concerned, the Court has permitted the lessees of these lime stone quarries to carry on mining operations and hence they must be allowed to remove whatever minerals are lying at the site of these lime stone quarries without any restirication whatsoever, save and except those prescribed by any statutes, rules or regulations and subject to payment of royalty.
[181B C] 5.
(ii) So far as the other lime stone quarries are concerned, whether comprised in category of Bhargav Committee Report of category 1 of the Working Group Report and falling within the City limits of Mussoorie or falling within category 2 of the Working Group Report, the lessees of these lime stone buarries are permitted to remove whatever minerals are found lying at the site of its vicinity, provided of course such minerals are covered by their respective leases and/or quarry permits.
Such removal will be carried out and completed by the lessees within four weeks from the date of this Order and it Shall be done in the presence of an officer not below the rank of Deputy Collector to be nominated by the District Magistrate, Dehradun a gazetted officer from the Mines Department nominated by the Director of Mines and a public spirit individual in Dehradun, to be nominated by Shri D. Bandopadhyay.
No part of the minerals lying at the site shall be removed by the lessees except in the presence of the above mentioned three persons.
The lessees will, on the expiry of the period of four weeks, submit a report to this Court setting out the precise quantities of minerals removed by them from the site pursuant to this Order made by the Court.
The lessees shall not be entitled to remove any minerals after the expiration of the period of four weeks.
[112E H; 113A] 6(i) In order to mitigate the hardship that may be caused to the lessees of lime stone quarries which have been directed to be closed down permanently or which may be directed to be closed down permanently after consideration of the Report of the Bandhopadjay Committee, the Court would direct the Government of India and the State of Uttar Pradesh that whenever any other area in the State of Uttar Pradesh is thrown open for grant of lime stone or dolomite quarrying, the lessees who are displaced as a result of this Order shall be afforded priority in grant of lease of such area and intimation that such area is available for grant of lease shall be given to the lessees who are 172 displaced so that they can apply of grant of lease of such area and on the basis of such application, priority may be given to them subject, of course, to their otherwise being found fit and eligible.
[179G H :180A C] 6(ii) The lime stone quarries which have been or which may be directed to be closed down permanently will have to be reclaimed and afforestation and soil conservation programme will have to be taken up in respect of such lime stone quarries.
and the Court would therefore direct that immediate steps shall be taken for reclamation of the areas forming part of such lime stone quarries with the help of the already available Eco Task Force of the Department of Environment, Government of India and the workmen who are thrown out of employment in consequence of this Court shall, as far as practicable and in the shortest possible time, be provided employment in the afforestation and soil conservation programme to be taken up in this area.
[180E G] ^


judgement:
Civil Appeal No. 480 of1973 A On appeal by Certificate from the Judgment and Decree dated 10.10.1972 of the High Court of Delhi in Letters Patent Appeal No. 380/71.
Mrs. Indra Sawhney for the Appellant.
V.C. Mahajan, G.D. Gupta, C.V. Subba Rao and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
Cases which evoke sympathy come frequently before the Courts.
But, pity, not often.
The case before us has a unique story to tell, the story of a crime committed under the stress of personal misery, compounded by the apathy of the Establishment and the appalling delays of law.
Ironically, the silver lining is furnished by the bravery of a broken man who has been fighting against injustice for the last 23 years.
When justice is done, or so the judges believe, the conscience is assuaged.
But in this case, despite our doing all that can be done for the appellant within the framework of law, we have an uneasy conscience.
Delay not only defeats justice and robs it of its immediate relevance to the parties but it shakes the very confidence of the people in the desire and ability of law courts to assist them when they need that assistance most.
The appellant was retrenched by the Ministry of Rehabilitation, Government of India in 1960, whereupon he was employed as a Cash Clerk by the Delhi Milk Supply Scheme Department, which is under the administrative control of the Government of India.
In 1962, he was prosecuted for breach of trust in respect of a sum of Rs. 500.
He repaid that amount and pleaded quality to the charge.
Accepting that plea, the learned Magistrate, First Class, Delhi, convicted him under section 409 of the Penal Code but, in view of the peculiar circumstances relating to the crime and the criminal, he released him under section 4 of the 166 .
As a result of the conviction, the appellant was dismissed from service summarily, with effect from April, 14, 1964.
The appellant filed a suit in 1966 in the court of the Sub Judge, First Class, Delhi for setting aside his dismissal from service, mainly on the ground that since he was released under the , it was not permissible to the authorities to visit him with the penalty of dismissal from service.
That suit was dismissed on the ground that since the appellant was convicted of a criminal charge, he was liable to be dismissed under clause (a) of the second proviso to Article 311 (2) of the Constitution.
The deree of the trial court was confirmed by the learned Additional Senior Sub Judge, Delhi in January 1968.
The appellant filed Second Appeal No. 142 of 1968 in the High Court of Delhi, which was allowed by D.K. Kapur, J. On April, 13, 1971.
The learned Judge accepted the contention of the appellant that, by reason of provision contained in section 12 of the , he could not be dismissed from service without affording him a reasonable opportunity of being heard, as required by Article 311 (2) of the Constitution.
The Government of India filed a Letters Patent appeal against that judgment, which was allowed by Jagjit Singh and R.N. Aggarwal, JJ.
On October 10, 1972.
This appeal of the year 1973 has come up for hearing in this Court more than 11 years after it was filed.
Section 12 of the must be placed out of way first.
It provides that not withstanding any thing contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or 4 "shall not suffer disqualification" attaching to a conviction for an offence under such law.
The order of dismissal from service consequent upon a conviction is not a disqualification" within the meaning of section 12.
There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications.
For example, Chapter III of the Representation of the People Act, 1951, entitled "Disqualifications for membership of Parliament and State Legislatures" and Chapter IV entitled "Disqualifications for Voting contain provisions which disqualify persons convicted of certain charges from being members of legislatures or from voting at elections to legislatures.
That is the sense in which the word "disqualifica 167 tion" is used in section 12 of the .
There fore, it is not possible to accept the reasoning of the learned Single Judge of the Delhi High Court.
But though this is so the ultimate order passed by the learned single Judge has to be upheld.
It can be supported on grounds other than the one on which it rests.
The learned Magistrate First Class, Delhi, Shri Amba Prakash was gifted with more than ordinary understanding of law.
Indeed he set an example worthy of emulation.
Out of the total sum of Rs. 1,607.99 which was entrusted to the appellant as a Cash cleric, he deposited Rs. 1,107.99 only in the Central Cash Section of the Delhi Milk Scheme.
Undoubtedly, he was guilty of criminal breach of trust and the learned Magistrate had no option but to convict him for that offence.
But, it is to be admired that as long back as in 1963, when section 235 of the Code of Criminal Procedure was not on the Statute book and later refinements in the norms of sentencing were not even in embryo, the learned Magistrate gave close and anxious attention to the sentence which, in the circumstances of the case, could be passed on the appellant.
He says in his judgment The appellant was a victim of adverse circumstances; his son died in February 1962, which was followed by another misfortune; his wife fell down from an upper storey and was seriously injured: it was then the turn of his daughter who fell seriously ill and that illness lasted for eight months.
The learned Magistrate concluded his judgment thus: "Misfortune dodged the accused for about a year. . . and it seems that it was under the force of adverse circumstances that he held back the maney in question.
Shankar Dass is a middle aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time.
He is not a previous convict.
Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the .
" It is to be learned that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could H 168 appropriately be imposed upon him in so far as his service career was concerned.
Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge".
But, that power, like every other power, has to be exercised fairly, justly and reasonably.
Surely the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a non parking area should be dismissed from service.
He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant or the ground of conduct which has led to his conviction on a criminal charge.
But the right to impose a penalty carries with it the duty to act justly.
Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.
Accordingly, we allow this appeal, set aside the judgment of the Delhi High Court dated October 10, 1972 and direct that the appellant shall be reinstated in service forthwith, with full back wages from the date of his dismissal until reinstatement.
The Government of India will pay to the appellant the costs of the suit, the First Appeal, the Second Appeal, the Letters Patent Appeal and of this Appeal which we quantify at Rupees five thousand.
The appellant will report for duty punctually at his former place of work on April 1, 1985.
In this brief judgment, we have referred to many unhappy facts.
We must mention one more.
We had adjourned this appeal after hearing it a while, in order to enable the Government to consider whether the appellant could be reinstated in service with a reasonable adjustment in the payment of back wages.
The learned counsel appearing on behalf of the Union of India showed us a letter written by a Deputy Secretary stating that the Hon 'ble Minister of Agriculture desired him to say that the Court should decide the case on merits.
We have done our modest best in that regard.
N.V.K Appeal allowed.

summary:
The appellant was employed as a Cash Clerk in a Department under the administrative control of the Government of India.
He was prosecuted for breach of trust in respect of a sum of Rs. 500.
He repaid the amount and pleaded guilty to the charge.
The Magistrate accepting the plea convicted the appellant under i section 409 of the Indian Penal Code, but having regard to the peculiar circumstances relating to the crime and the adverse circumstances in which the appellant was placed, when he committed the offence, viz. his son died during the period, his wife fell down from an upper storey and was seriously injured, his daughter fell ill and that illness lasted for about eight months; released him under section 4 of the As a result of this conviction, the appellant was dismissed from service sum marily, The appellant filled a suit for setting aside his dismissal from service, contending that since he was released under the , it was not permissible for the authorities to impose the penalty of dismissal from service.
The suit was dismissed on the ground that since the appellant was convicted of a criminal charge he was liable to be dismissed under clause (a) of the second proviso to Article 311(2) of the Constitution.
The appellant 's first appeal was dismissed, but the second appeal to the High Court was allowed by a Single Judge OD the ground that by virtue of the provision contained in section 12 of the , the 164 appellant could not be dismissed from service without affording him a reasonable opportunity of being heard, as required by Article 311 (2) of the Constitution.
The Letters Patent Appeal I of the Government of India against the judgment was allowed by a Division Bench.
Allowing the appellant 's appeal to this Court, ^ HELD: 1.
The judgment of the Division Bench of the High Court in the Letters Patent is set aside, and the appellant shall be reinstated in service forthwith, with full back wages from the date of dismissal until reinstatement.
1168El 2.
Section 12 of the provides that notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or 4 thereof, "shall not suffer disqualification ' attaching to a conviction for an offence under such law.
The order of dismissal from service consequent upon a conviction is not a "disqualification" within the meaning of section 12.
There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications.
For example, Chapter Ill of the Representation of the People Act, 1951, entitled "Disqualifications for membership of Parliament and State Legislatures" and Chapter IV entitled "Disqualifications for Voting ' ' contain provisions which disqualify persons convicted of certain charges from being members of legislatures or from being members of legislatures or from voting at elections legislatures.
That is the sense in which the word disqualification ' is used in section 12 of the .
[166F H] In the instant case, it is therefore not possible to accept the reasoning of the Single Judge in the Second Appeal.
Clause (a) of the second proviso to Article 31 l (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge".
But, that power, like every other power has to be exercised fairly, justly and reasonably.
The Constitution dose not contemplate that a Government servant who is convicted for parking his scooter in a no parking area should be dismissed from service.
He may, perhaps not be entitle(l to be heard on the question of penalty since clause(a) of the second proviso to Article 311(2) makes the provisions of that.
Article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge.
But the right to impose a penalty carries with it the duty to act justly.
[168B C] In the instant case, the Government chose to dismiss the appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned.
Considering the facts of the case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.
[167H; 168D] 165


judgement:
Civil Appeal No. 1236 (Nce) Of 1975 Appeal under Section 116A of the R.P. Act from the order date 1.2.84 of the Gauhati High Court in E.P. No. 3 of 1983.
C. section Vaidyanathan for the Appellant.
Kapil Sibal, K K Lahiri and Mrs. Manik Karanjwala for the Respondent.
The Judgment of the Court was delivered by 344 VARADARAJAN, J.
This appeal by the respondent in Election Petition No. 3 of 1983 on the file of Gauhati High Court is directed against the judgment of a learned Single Judge, allowing the election petition and setting aside the election of the appellant Horangse from the Longkhim Chre constituency of the Nagaland Legislative Assembly on the ground of corrupt practice, namely, presentation of four red waist coats to three Gaon Burahs and one Barik of Lirise village on 27 10 1982 to induce them to cast their votes in his favour.
The respondent/election petitioner, M. Tsubongse who contested as a Congress (I) candidate lost to the appellant who contested as a Naga National Democratic Party candidate (for short 'NNDP ') by a margin of 133 votes in the election held on 10 11 1982.
He filed his election petition seeking the appellant 's election to be set aside on the ground that he was guilty of four instances of corrupt practice falling under section 123(1) of the Representation of People Act, 1951 (for short 'the Act ') and on three other grounds, namely: (1) display of a banner with the caption "Do not sell Nagaland to India", a corrupt practice within the meaning of section 123(3A) of the Act (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of section 123(6) of the Act and (3) use of government vehicles for the purpose of the election.
The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and he allowed the election petition and set aside the appellant 's election on that ground.
It is, therefore, necessary to set out the case of the parties briefly in regard to this single ground.
The result of the election held on 10 11 1982 was announced on the day of counting 12 11 1982 by the Returning Officer, Tuesung.
The respondent had secured 3082 valid votes while the appellant, who was the Deputy Speaker of the last Legislative Assembly of Nagaland had secured 3215 valid votes and was declared elected by a majority of 133 votes.
The respondent alleged in the election petition that the appellant gave four red waist coats to the voters Lisechem, P.W. 11, Lithrongse, P.W. 12, Murimong, P.W. 13 and Lithsaba at 4.00 p.m.
On 27 10 1982 for inducing them to cast their votes in his favour in the presence of .
Tsarise, P.W. 14 and Tselongse, P.W. 15 of Lirise village who witnessed the offer and reported the matter later to the respondent.
345 The appellant denied that the waist coats were given either by himself or in order to induce the recipients to cast their votes in his favour.
His case was that he visited Lirise village some time prior to October 1982 and was received by the villagers who considered him as one of their leaders.
In view of the custom of Nagas to receive guests or others and exchange gifts, he sent five waist coats to be given to four Gaon Burabs and the eldest Barik of the village long before the election process started.
The waist coats ware not given to procure votes or to induce the recipients to cast their votes in his favour.
Thus he denied that he committed and corrupt practice and contended that the election petition is not bona fide and has been filed only to harass him.
During the trial the appellant 's case was that he sent the five waist coats as gifts through Tsarise, P.W. 14 in September 1982 and that he did not personally distribute them after the election process had started in order to induce the recipients to cast their votes in his favour.
The dispute was thus confined to the date of distribution of the waist coats, namely, whether they were given in September 1982 or on 27 10 1982, as to whether the appellant gave them personally or sent them through P.W. 14 and as to whether they were given to induce the recipients to cast their votes in favour of the appellant or only to keep up the appellant 's promise made in August 1982 to send some gifts in return for the gift made to him E earlier as per custom.
The respondent examined Lisechem, P.W, 11, Lithrongse, P.W. 12, Murimong P.W. 13, B. Tsarise, P.W. 14 and Tselongse, P.W. 15 for proving this item of corrupt practice.
On the side of the appellant there is the evidence of the appellant R.W. 1, Chupongse, R.W. 3, Krishna Kumar R.W., 4 and Yanstsasi R.W, 5 about this charge.
On a consideration of the oral and documentary evidence the learned Judge of the High Court found that this item of charge of corrupt practice is proved beyond reasonable doubt and he accordingly allowed the election petition and set aside the appellant 's election as stated above.
However, the learned Judge did not rule out that the appellant had distributed red waist coats in September 1982 as`observed by him in paragraph 15 of his judgement which will be extracted in due course.
346 The appellant, R.W. 1 has denied in his evidence that he went to Lirise village on 27 10 1982 or presented the waist coats personally.
He has stated that he visited that village two or three days after 15 8 1982 at the request of the Head Gaon Burah, R.W. 3, and was welcomed by the Gaon Burahs and others where P.W. 14, then a leading worker and member of the NNDP was also present and was taken to the house of R.W. 3 and presented with a shawl as per the custom of the Nagas and that as he had gone there urgently and had not taken anything to make a gift by way of return as per the custom, he promised to send some gifts later and he thereafter ordered under exhibit dated 2 9 1982 for the making of five red waist coats through Krishna Kumar, R.W. 4 and got them from him on 10 9 1982 and sent them in the same month through P.W. 14 being distributed to the Gaon Burahs of Lirise village.
He has stated that he filed the nomination paper on 13 10 1982 and that P.W. 14 who was Area Council Member joined the Congress (T) party in the midst of the election and supported the Congress (I) candidate.
Krishna Kumar, R.W. 4, the proprietor of a tailoring firm at Kohima has corroborated the evidence of R.W. I about placing of the order exhibit on 2 9 1982 and taking delivery of the waist coats on 10 9 1982.
He has stated that exhibit written by the appellant is signed by him and that as the appellant was a known person he delivered the waist coats though exhibit was not surrendered to him on 10 9 1982.
The Head Gaon Burah, R.W. 3 has corroborated the evidence of R.W. l that he met the appellant at Longkhim in August 1982 and requested him to visit Lirise village and that he accordingly came to Lirise village and was received in the Mong Mong month and presented with a cloth, and that the appellant regretted that he had not brought anything to be presented by way of return and promised to send waist coats later.
He has further stated that P.W. 14 subsequently told him that the waist coats had arrived and he thereupon asked him to distribute them and give one of them to him also and they were given to him and other Gaon Burahs.
Yanstasi, R.W. 5 has corroborated the evidence of R.W. 3 about the appellant 's visit, saying that two months before the election held in November 1982 he had gone to Lirise to meet the appellant, and that the appellant was received by the villagers and taken to the Head Gaon Burah 's house and presented with a sangtam cloth and that the appellant regretted that he had not brought any present to be given by him and assured that he would send waist coats later.
R.W. 5 was Head Gaon Burah and he became Special 347 D.B. at Seotsing from 15 9 1983.
He has denied that he had worked for the appellant in the elections held in 1977 and 1982, in both of which he had been declared duly elected.
R.W. 3 has not been cross examined seriously about the month of the appellants visit to Lirise village, namely, Mong Mong month, which according to the evidence of R.W.5 is September in which the Mong Mong festival is celebrated by the Nagas.
exhibit
C was not filed in the court at the earliest stage.
R.W I has stated in his evidence that his wife came across it after he had filed his written statement in the election petition and gave it to him for being Produced during the trial.
May be, noreliance could be placed on Ex to find out when the waist coats were ordered to be made and about when they were actually delivered by R.W.4 to the appellant.
P.W.14 has not been cross examined regarding the month in which he left the NNDP and joined Congress (I) party, which according to his evidence, was in August 1982.
Similarly R.W.
I has not been cross examined about when P.W.14 left the NNDP and joined the Congress (I) party, which according to his evidence, was in the midst of the election in which he filed the nomination paper on 13 10 1982.
It is not improbable that the appellant had sent the waist coats through P.W.14 who was a prominent member of the NNDP and the Area Council member at that time for being distributed to the Gaon Burahs by way of return of the present of the shawl made to him during his earlier visit as per the custom amongst Nagas to exchange gifts during the visit of important persons like M.L.As.
and others.
The appellant was the Deputy Speaker of the Nagaland Legislative Assembly at that time.
The said custom amongst the Nagas is spoken to even by respondent P.W.1 who has stated in his evidence that normally villagers also would present gifts to visiting M.L.As.
and the visiting M.L.As.
also would .
make presents to the villagers as per the custom of the Nagas.
We find no satisfactory reason for rejecting the evidence of R.Ws. 1 to 5.
As a matter of fact, even the learned counsel for the respondent in this appeal before the trial court does not appear to have seriously challenged the acceptability of the evidence of these witnesses in the course Or his arguments before the learned Judge.
The learned Judge has stated in his judgment in regard to this matter thus: "It has been contended that even if it is assumed that the respondent (appellant in this appeal) had taken delivery of five red waist coats on 10 9 1982 as reflected in exhibit C, this would not rule out the distribution in October 1982.
It is further submitted by the learned counsel for the petitioner (respondent in this appeal) that even if 348 distribution of some waist coats had taken place in September 1982 as deposed by R.Ws. 4 and 5, the same is not enough to discard the allegation of distribution of other waist coats in October 1982.
This submission is apparently right inasmuch as because some persons had been given in September 1982 in pursuance of assurance made in August 1982 it would not by itself rule out the giving of such gifts in October, more so when the price of one waist coat seems to be around Rs. 100" The sum of Rs. 100 per piece mentioned by R.W.1 in his evidence is the price of each of the blankets which he had distributed to some persons in the village in 1981 and not of each of the waist coats given in 1982.
It is not the case of any of the parties that waist coats were presented by or at the instance of the appellant once in September 1982 and again to the same Gaons Burah in October 1982.
Nor is it probable that only waist coat would have been presented on both the occasions to the same individuals Even if the evidence of R.Ws. 1 to 5 is considered to be unsatisfactory to prove that the red waist coats were presented only in September 1982 and not in October 1982, that does not mean that the respondent 's case that the red waist coats were given to P.Ws. 11, 12 and 13 on 27.10.1982 to induce them to cast t heir votes in favour of the appellant stands proved.
The respondent has to prove his case which is disputed by the appellant independently of the fact whether the appellant has proved his defence or not.
Now we proceed to consider the evidence of P.Ws.11 to 15.
Lisechem, P.W.11, a Gaon Burah of Lirise village mentioned the date of the appellant 's visit first as 27.9.1982 and then corrected it as 27.10.1982 and again stated that he does not remember the month or dale of receipt of the waist coat by him from the appellant and he has added that it was after the date of the election.
He has stated that the appellant came to his house on 27.10.1982 and gave him a red waist coat and asked him to cast his vote in his favour and not to inform others about the presentation of the waist coat and that soon after the appellant left his house, P.Ws. 14 and 15 came to his house and asked him about what had been given to him by the appellant and he thereupon showed that waist coat to them and told them that it was given to him.
Lithrongse ' P.W.12, another Gaon Burah of Lirise village has 349 stated that the appellant came to his house at 4.00 p.m.
On 27.10.1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that soon after the appellant left his house, P.Ws 14 and 15 came there and asked him as to what was given to him and he thereupon told them that the appellant gave him a waist coat and they asked him to remember it and not to deny it later.
He is unable to deny that appellant visited the village in August or September 1982 or to say whether it was in 1981 when admittedly he received a blanket from the appellant on a prior occasion when the appellant was the Deputy Speaker of the Legislative Assembly.
It is seen from his evidence that P.W. 15 belongs to the Congress (I) party and that P.W. 14 was previously in the NNDP and had subsequently joined the Congress (I) party.
Muri Mong, P.W. 13 of Lirise village has stated in his evidence that the appellant came to his village after 4.00 p.m. On 27.10.
1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that a minute after the appellant left his house, P.Ws. 14 and 15 came there and asked him if a waist coat was presented to him by the appellant.
He has denied that P.W. 14 gave the waist coat to him in the first party of September 1982 and that the appellant did not visit his village or present the waist coat on 27.10.1982.
He has stated that he is an old man and that he does not remember months and dates.
Tsarise, P.W. 14 who was admittedly in the NNDP and a supporter of that party previously claims to have joined the Congress (I) party in August 1982.
He has stated in his evidence that the appellant came to Lirise village on 27.10.1982 and visited the houses of P.W.11, Lithsabha and P.Ws.
12 and 13 in that order at about 4.00 p m. and that he and P.W.15 went to those houses within a few minutes after the appellant 's departure from there and those persons individually told them that the appellant gave them a waist coat and asked them to cast their votes in his favour.
He has admitted that when he visited the house of P.Ws.11 to 13 and Lithsaba he asked them to remember the date and the time and not to deny it later.
He has denied that the appellant sent the red waist coats through him in the early part of September 1982 for distribution amongst Gaon Burahs of Lirise village.
Tsalongse, P.W. 15 does not remember the date of the appellant 's visit to Lirise village.
He has, stated in his evidence that the 350 appellant came to the village in the election period and asked the people to cast their votes in his favour.
He claims to have gone to `the house of P.W. 14 and to have seen from there the appellant visiting the houses of P.W. 11.
Lithsaba and P.Ws. 12 and 13 one after, the other.
He has stated that he and P.W. 14 went to those houses soon after the appellant left the places and they individually told them that the appellant gave red waist coats and asked them to cast their votes in his favour.
He has denied that the appellant neither visited Lirise village nor presented waist coat on 27.10.1982.
It is significant to note that though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4.00 p.m.
On 27.10.1982 for inducing them to cast their votes in his favour in the presence of P.Ws.
14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent P.Ws.
14 and 15 do not claim in their evidence personal knowledge about the offer presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in his favour.
Admittedly, P. Al.
14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places.
It is clear that these three witnesses.
I l to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember.
P W. 14, who was a staunch worker of the NNDP and had switched over to the Congress (I) party to which P.W. 15 belongs, some time before the election.
and P.W. 15 are the interested witnesses.
P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws.
I l to 13 in Lirise village only thereafter.
If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour.
The evidence of P.Ws. 11 to 13 that P.Ws.
14 and 15 came to their houses within minutes after the appellant left the place and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to them with a request to 351 favour him with their votes, they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable.
We are, therefore, not impressed with the evidence of P.Ws.11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and others.
On the evidence of R.Ws. 1 to 5, which we accept, we find that the appellant got the waist coats distributed through P.Ws.
14 who was then a staunch worker of the NNDP in September 1982 long before the election process had started as per the custom of Nagas to make gifts in return for the gifts received by dignitaries.
The evidence let in by the respondent to prove this item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily.
We are, therefore, unable to uphold the judgment of the learned Judge, setting aside the appellant 's election on the ground of the alleged corrupt practice.
We accordingly allow the appeal with costs in both the courts and set aside the judgment of the learned Judge.
S.R. Appeal allowed.

summary:
Tsubongse the election petitioner and the respondent herein who contested from the Longkhim Chre constituency of the Nagaland Legislative Assembly as a Congress (I) candidate in the election held on 10.11.82 lost by a margin of 133 votes to Horangse the appellant and who was the Deputy Speaker of the last legislative Assembly.
The respondent filed an election petition on the ground that the appellant was guilty of four instances of corrupt practice falling under Section 123(1) of the Representation of People Act, 1951 and on three other grounds, namely; (1) display of a banner with the caption "do not sell Nagaland to India", a corrupt practice within the meaning of Section 123 (3A) of the Act; (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of Section 123(6) of the Act and (3) use of government vehicles for the purpose of the election.
The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and therefore, he allowed the election petition and set aside the appellant 's election on that ground.
Hence the appeal.
Allowing the appeal, the Court ^ HELD :In an election petition, the petitioner who alleges corrupt practice must prove his case which is disputed by the returned candidate indepen 343 dently of the fact whether the returned candidate has proved his defence or not.
[348E] Here on the evidence of R.Ws. 1 to 5, the appellant got the waist coats distributed through P.W. 14 who was then a staunch worker of the Naga National Democratic Party in September, 1982 long before the election process had started, as per the custom of Nagas to make gifts in return for the gifts received by dignitaries.
The evidence let in by the respondent election petitioner to prove the item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily.
Though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4 p.m.
On 27.10.82 for inducing them to cast their votes in his favour in the presence of P.Ws.
14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent, P. Ws. 14 and 15 do not claim in their evidence personal knowledge about the offer on presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in favour.
Admittedly, P.W. 14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places.
It is clear that these three witnesses, P.Ws. 11 to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember.
P. W. 14 who was a staunch worker of the NNDP and had switched over to the Congress (I) Party to which P.W. 15 belongs, sometime before the election, and P.W. 16 are interested witnesses.
P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws. 11 to 13 in Lirise village only thereafter.
If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour.
The evidence of P.Ws. 11 to 13 that P.Ws.
14 and 15 came to their houses within minutes after the appellant left the places and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to then with a request to favour him with their votes, and they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable.
The evidence of P.Ws. 11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and another is equally not impressive.
Therefore, the appellant cannot be said to have committed any "corrupt practice".
[351B C; 350C H]