judgement:
Civil Appeal No. 561 of 1975.
Appeal by special leave from the judgment and order dated 6 2 1975 of the Karnataka High Court in Writ Petition No. 48 of 1975.
G L. N. Sinha, Solicitor General of India and M. Veerappa, for the appellants.
V. M. Tarkunde,, section section Javali, A. K. Srivastava and B. P. Singh, for respondent Nos. 1 9, 16, 17, 19 21 & 26 30.
H H. B. Datar and R. B. Datar, for respondent Nos. 18 & 25.
59 The judgment of the Court.
was delivered by BHAGWATI, J. There is a town called Gangawati in The State of Karnataka.
It had a Town Municipal Council constituted under the Karnataka Municipalities Act, 1964.
The term of office of the Municipal Councillors elected at the last General Elections expired by efflux of time in 1962, but instead of holding a General Election to constitute a new Town Municipal Council, the State Government appointed an Administrator to exercise the powers and perform and discharge the functions and duties of the Town Municipal Council and also constituted an Advisory Council to advise and assist the Administrator.
The appointment of the Administrator and the constitution of the Advisory Council were challenged by one of the residents of Gangawati in the High Court of Karnataka by Writ Petition No. 2405 of 1972.
The writ petition was, however, settled as the State Government gave an undertaking that it would take the necessary steps for holding a General Election within a reasonable time.
This happened on 6th February, 1974.
The State Government thereafter, in accordance with the undertaking given by it, appointed the Returning Officer on 25th February, 1974 and it looked as if the General Elections was at last going to be held.
But this hope was belied.
Before the Re turning officer could issue a notice fixing the calendar of events forth election, the State Government rescinded the Notification which had been issued by it earlier under s.13 of the Act determining inter alia the territorial divisions into which the Municipality shall be divided.
The result was that no further steps could be taken by the Returning Officer in the matter of holding the election.
Angered and frustrated by this second attempt on the part of the State Government to bulk the holding of the election, the same individual, who had filed the earlier writ petition, preferred another writ petition, namely, Writ Petition No. 2715 of 1974.
for a mandamus to the State Government to hold the election.
The High Court made an order on this writ petition on 7th August, 1974 directing the State Government to hold the election within four months.
This time was later extended to 8th March, 1975.
Pursuant to the direction of the High Court, the State Government issued a Notification dated 3rd December, 1974 under section 13 of the Act determining the territorial divisions into which the Gangawati Municipality shall be divided for the purpose of holding the election and allotting number of seats to each territorial division.
The Gangawati Municipality was divided into six territorial divisions and each territorial division was defined and demarcated by reference to census block numbers, wards and also boundaries.
The Returning officer there after on 7th December, 1974 issued a notice fixing the calendar of events for holding the election.
The Tehsildar, who was the designated officer under section 14, sub section
(2), in the meanwhile, prepared the list of voters for each division from the Mysore Legislative Assembly Electoral Roll (hereinafter referred to as the Electoral Roll) by including in the list parts of the Electoral Roll referable to the census block numbers comprised within the division.
The list of voters for each division so prepared was authenticated by the designated officer and kept open for inspection in the office of the Municipal Council.
A 60 large number of nominations were filed on or before the last date fixed for it in the calendar of events and after scrutiny and withdrawal, a list of the contesting candidates was published by the Returning officer on 21st December, 1974.
The only step which remained to be taken to complete the process of election was the poll which was fixed on 10th January 1975.
However, on 21st December, 1974, when the question of finalisation of polling stations was taken up by the Returning officer, the Secretary of the Congress Party raised an objection that the division wise lists of voters prepared and authenticated by the designated officer were defective "inasmuch as voters who reside in one division are being made to vote in a different division" and that these lists of voters should, therefore, be rectified before fixing up the polling stations.
The Returning officer considered his objection and by an order made on the same date rejected it.
This order is very material and we will, therefore.
reproduce it in full.
It reads inter alia as follows: "It is seen from the list maintained that the population in the parts of voters list tallies with the proposal made to Government for the delimitation of the constituencies.
Further it is seen that the various parts included in the division wise voters list conform to the census block numbers which are mentioned in the notification published in regard to the declaration of delimitation of territorial divisions.
It also fits into the ward wise description of constituencies as declared by Government.
However, it is too late in the day to prefer objections about voters list.
The voters list was open for inspection all along.
Many interested parties have obtained copies of the same.
Nominations have been filed by respective parties on the basis of the same voters list and the scrutiny has been completed and valid nominations have been declared and today at 3.00 p.m.
Last date for withdrawal is also over and the list of polling stations is finalised.
At this juncture, it is regretted to declare that parties cannot be allowed to go back to the period prior to scrutiny of the nomination papers, especially so when there was not one word of objection or protest over the voters list at the appropriate time.
As per section 23(3) of the Representation of the People Act, 1950 no amendment or deletion of any entry in the electoral roll should be made or given effect after the last date for making nominations in that constituency or division.
Any change in the parts of the Division of Voters will amount to an amendment of electoral roll of that division.
" It appears that three of the contesting candidates and a member of the Legislative Assembly belonging to the Congress Party were dissatisfied with this order and they, therefore, made an application to the Deputy Commissioner pointing out what they thought were defects in the division wise lists of voters.
The Deputy Commissioner instructed the 61 Returning officer to make physical verification of these defects and the Returning officer accordingly went to the respective places where the mistakes were alleged to have occurred and after verification, made a report dated 27th December, 1974.
In this report, the Returning officer stated that: "It was found during my random inspection of the various houses on the borders of the different divisions that some voters residing adjacent to one division have been included in another ad joining division and the voters list in respect of each division has been formed accordingly." The Returning officer observed that as a result of this physical verification it was found that 'the number of; voters ill the respective division would undergo considerable change" and gave figures showing that the change in the number of voters in each division would be in the neighborhood of twenty five per cent.
Basing itself on this report, the State Government, by an order dated 30th December, 1974, canceled the calendar of events published by the Returning officer and directed him to issue fresh calendar of event. "after getting the voters lists completed strictly as per the division notified.
" Though this order did not refer to the provision of law under which it was purported to be made, the State Government claimed that the source of its power to make this order lay in rule 75 of the Mysore Municipalities (Election of Councillors) Rules, 1965 (hereinafter referred to as the Rules) made under s.38 of the Act.
The petitioners.
who are residents of Gangawati, finding that the State Government had again tried to fish out some excuse for putting off the general election, preferred the present writ petition questioning the validity of this order made by the State Government.
The High Court, by a judgment and order dated 6th February, 1975 held that the State Government had no power under rule 75 to cancel the calendar of events validly fixed by the Returning officer and set at naught the election process which had already commenced and in this view, quashed and set aside the order of the State Government and directed the Returning officer to hold the elections "from the Stage at which it was interrupted by the impugned Government order after fixing convenient dates for the remaining events so that the election may be completed before 8th ' March, 1975.
" The State Government challenges the correctness or this view in the present appeal brought with special leave obtained from this Court.
The hearing or this appeal concluded on 2nd May 1975 which was the last working day for the Court before the commencement of the summer vacation.
Since the appeal involves the question as to the holding of the election and delay in the pronouncement of the order might defeat the object of filing the appeal, we pronounced our order immediately after the conclusion of the hearing, dismissing the appeal with costs and directing the Returning officer to complete the election before 10 June, 1975.
We now proceed to give our reasons.
The question which arises for determination in the appeal is as to whether the State Government had power under rule 75 to make the impugned order cancelling the calendar of events and thereby in effect setting at naught the entire election process which had proceeded upto the stage of poll.
Rule 75, which is the last amongst the Rules, in the following terms: 62 "Notwithstanding anything contained in these rules, the State Government and subject to the general or special orders of the Government, the Commissioner shall have the power of superintendence, direction and control of the con duct of elections under these rules, and may make such orders as it or he deems fit for ensuring that the elections are held in accordance with the provisions of the Act.
" lt is not necessary for the purpose of the present appeal to embark on a discussion on the wider question as to what are the different circumstances in which the power conferred under rule 75 can be exercised by the State Government and what kind of order can be made by the State Government in exercise of such power.
It would indeed be inexpedient and unwise to draw the precise lines within which the power under rule 75 should be exercisable, for there may be infinite valid circumstances which may call for exercise of such power What we need consider here is only the limited question whether on the facts and circumstances of the present case, the State Government had power under rule 75 should be exercisable, for there may be infinite calendar of events fixed by the Returning officer.
If such power could not be found in rule 75, it was common ground that there was no other provision in the Act or the Rules which would justify the making of the impugned order and it would plainly be invalid.
Now, the only justification pleaded by the State Government in support of the exercise of the power under rule 75 was that the division wise lists of voters prepared and authenticated by the designated officer were defective and if the election were held on the basis of such defective lists of voters, it would not be in accordance with the provisions 1.
` of the Act and hence the impugned order had to be made by the State Government for ensuring that the election was held in accordance with the provisions of the Act as contemplated under rule 75.
This justification, plausible though it may seem, is, in, our opinion, without merit.
To test its validity it is necessary to understand the nature of the defect from which according to the finding of the Returning officer, the divisional lists of voters suffered and see whether that defect brings the case within the scope and ambit of rule 75.
We may first refer to a few relevant sections of the Act.
Sec. 13 provides that for the purposes of election of councillors at a general election, the State Government shall, after previous publication, by notification, determine (a) the number of territorial divisions into which the municipality shall be divided, (b) the extent of each territorial division, (c) the number of seats allotted to each territorial division which shall be not less than three and not more than five, and (d) the number of seats, if any, reserved for the Scheduled Castes and for women in each territorial division.
It was in obedience to the requirement of this section that the State Government issued the notification dated 23rd December, 1974 determining inter alia the divisions in which the Gangawati Municipality shall be divided for the purpose of holding the election.
The extent of each division was defined and demarcated in the Notification with great precision by reference to the 63 census block numbers which had been given to the different areas at the time of the census.
These areas were clearly and definitely identifiable by their census block numbers, particularly as the extent of each census block number was well defined and it was known with definiteness and certitude as to which houses were comprised in it.
There was, therefore, plainly and manifestly no doubt or uncertainty about the extent of each of the division into which the Gangawati Municipality was divided by the Notification.
Section 14 is the next important section which deals with the subject of list of voters.
It has four sub sections of which the first three are material.
They are as follows: "(1) The electoral roll of the Mysore Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in a division of a municipality shall, for the purpose of this Act, be deemed to be the list of voters for such division.
(2) The officer designated by the Deputy Commissioner in this behalf in respect of a municipality shall maintain a list of voters for each division of such municipality (3) Every person whose name is in the list of voters referred to in sub section (1) shall unless disqualified under any law for the time being in force, be qualified to vote, at the election of a member for the division to which such list pertains.
" What shall be the qualification of a person to stand as a candidate at an election is laid down in section 15, sub section
That sub section provides that every person whose name is in the list of voters for any of the divisions of the municipality shall, unless disqualified under this Act or any other law for the time being in force, be qualified to be elected to the election for that division or any other division of the municipality and every person whose name is not in such list shall not be qualified to be elected, at the election for any division of the municipality.
Then follows sub section
(2) which is of some importance.
We quote it: "Subject to any disqualification incurred by a person the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case may be, at an election." Section 38 confers power on the State Government to make rules to provide for or regulate all or any of the matters set out in the section for the purpose of holding election of councillors under the Act.
It was in pursuance of this section that the Rules were made by the State Government.
It will be seen on a plain reading of sub s (1) of section 14 that the electoral roll for the territorial area comprised in a division is to be deemed to be the list of voters for such division.
The designated officer is merely to perform the operation of scissors and paste cut 64 out those portions of the electoral roll which relate to the territorial area included in the division and paste them together so as to form the list of voters for the division.
There is no separate qualification laid down in the Act for being placed in the list of votes for a division laid down in the Act for being placed in the list of votes for a division as was the case in Chief Commissioner, Ajmer vs Radhey Shyam Dani.
In that case, section 30, sub section
(2) of Ajmer Merware Municipalities Regulation, 1925 laid down tow conditions which must be fulfilled in order to entitle a person to be enrolled as an electoral of the Ajmer Municipalities Regulation, 1925 laid down two conditions which must be fulfilled in order to entitle a person to be enrolled as an electoral of the Ajmer Municipalities, namely, (1) that he should be entitled under the Representation of the People Act, 1950 to be registered in the electoral roll for a Parliamentary Constitution, if the constituency had been co extensive with the Municipality, and (2) that his name should be registered in the electoral roll for a Parliamentary Constituency comprised in the Municipality.
It was for this that the name of a person should be registered in the electoral roll of a Parliamentary Constituency.
That did not entitle him straightaway to be included in the electoral roll of the Municipality.
It was further required to be seen whether he was entitled to be registered in the electoral roll of the Parliamentary Constituency.
That enquiry was necessary to be made before the electoral roll of the Municipality could be prepared.
But, here no other qualification is required : the mere fact of a person being in the Electoral Roll for the territorial area comprised in a division is sufficient to include him in the list of voters for such division.
Vide sub section
(1) of section 14.
What is required by this sub section is that the list of voters of a division should correspond ipsissima verba with the Electoral Roll for the territorial area included in the division.
If there is any mistake in the Electoral Roll, in that some voters residing in one area or house number are shown as residing in another, it cannot be corrected by the Returning Officer while preparing the list of voters for each division.
The Returning Officer has to take the Electoral Roll for the territorial area of the division as it is, with whatever mistakes there may be in it and that would be the list of voters for the division.
The only way in which the mistakes, if any, either in the names of the voters or in their addresses, including house numbers in which they reside, can be corrected is by applying for rectification of the Electoral Roll under section 22 of the Representation of the People Act, 1950.
So long as such rectification is not made, the entries in the Electoral Roll would stand and they would necessarily be reflected in the list of voters for the division.
But they would not constitute mistakes, so far as the preparation of the list of voters for the division is concerned.
It is only if the list of voters for the division does not correspond with the Electoral Roll for the territorial area comprised in the division, in the sense that voters shown in the Electoral Roll as residing in the territorial area of the division are omitted to be included in the list of voters, or voters shown in the Electoral Roll as residing in the territorial area of another division are included in the list of voters, that it can be said that the list of voters is defective and not in accordance with the provisions of the Act.
65 Now in the present case, it is clear from the order of the Returning officer dated 21st December, 1974 that the list of voters for each division corresponded fully and completely with the Electoral Roll for the territorial area comprise in such division.
The finding of the Returning officer was that the various parts of the Electoral Roll included in the list of voters for each division conformed to the Census Block numbers of the respective division mentioned in the Notification dated 3rd December, 1974.
Each division was defined and demarcated by reference to Census Block numbers and the parts of the Electoral Roll were also made out on the basis of Census Book numbers.
There could, therefore, be no doubt or confusion as to which parts of the Electoral Roll related to the territorial area comprised in a particular division.
The correspond parts of the Electoral Roll could be easily ascertained and identified by reference to Census Block numbers for preparing the list of voters for each division.
that was admittedly done in the present case and there was no complaint about it.
No defect was also alleged or found in this respect.
The only defect if at all it can be cared a defect which the Returning officer noticed on physical verification was that the voters shown ill the Electoral Roll as residing in the territorial area or one division were in fact residing in another.
But, as already pointed out above that cannot be regarded as a defect in the division wise list of voters and it would not stamp them with the vice of not being in conformity with the requirements of the Act.
The State Government was, there fore, in any view of the matter, not entitled to make the impugned order under rule 75 on the ground that the divisional lists of voters were defective and the election held on the basis of such lists of voters would not be in accordance with the provisions of the Act.
What the State Government did by making the impugner order was to interfere with the election process which was going on in accordance with law and that was clearly not permissible on any interpretation of rule 75.
That takes us to the alternative argument advanced by the learned Solicitor General on behalf of the State Government.
He contended that in any event even if the impugned order was bad and the election process was liable to be continued from the stage at which it was interrupted, the poll could be taken only on the basis of the revised Electoral Roll which had come into being, in the meanwhile, in February 1975 and, therefore it was necessary for the designated officer to correct the divisional lists of voters so as to bring them in accord with the revised Electoral Roll.
This contention is also without force.
lt is true that there is no provision in the Act similar to section 23 sub section
(3) of the Representation of the People Act, 1950 providing that no amendment, transposition or deletion of any entry in the list of voters for a division shall be made and no direction for the inclusion of any name in such list of voters shall be given after the last date for making nomination for an election in the division.
But the scheme of the Act and particularly sections 14 and 15 make it clear that it is one list of voters for each division that is contemplated to be in force during the entire process of election.
The list of voters is to be prepared for the election and 'election ' means the entire process consisting of several stages and embracing several steps by which an elected member is re 66 turned, whether or not it is found necessary to take a poll.
Vide: N. P. Ponnuswami vs Returning officer, Namakkal Constituency & ors.(1) The list of voters must, therefore, a fortiori remain the same throughout the process of election.
There cannot be one list of voters for determining the eligibility to stand as a candidate and another for determining the eligibility to vote, at the sane election.
That would not only be irrational, but would also introduce confusion and uncertainty in the election process.
Candidates would not know at the time when they file their nominations as to what is the strength and composition of the electorate in the division m which they are contesting the election.
They would also be handicapped in canvassing for votes.
It would indeed be a strange and anomalous position if there were two or more different lists of voters at different stages of the same election Sub section
(1) of s.14 does not contemplate a this of voters which keeps on changing from times to time during the election t process.
It deems the Electoral Roll for the territorial area of the division, in force at the relevant time to be the List of voters for the division "for the purpose of the Act", that is for the purpose of election which is the whole process culminating in a candidate being declared elected and not merely polling.
The same list of voters is, therefore, to prevail for all stages in the election.
This we find emphasised also in sub section
(3) of s.14 which enacts that every person whose name is in the list of voters referred lo in sub section
(1) shall be qualified to vote at the election of a member for the division to which such list pertains.
Sub section
(2) of s.15 also points in the same direction.
It says that "the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected as the case f may be, at an election.
" The reference here, as matter of plain grammar, is indisputably to the same list of voters which is to be conclusive evidence for both purposes.
lt is, therefore, clear, on a proper interpretation of the provision of the Act that the Legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Ellctoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is, the date when the calendar of events was published.
The same view was taken by a revision Bench of the Mysore High Court in Shivappa Chanamollappa Jogendra vs Basavannappa Gadlappa Banker.
(") We are in agreement with that view.
The poll in the present case must, therefore, be taken on the basis of the list of voters for each division prepared with reference to the Electoral Roll in force on 7th December, 1974, that being the date on which the calendar of events was published by the Returning officer.
One other question was also raised before us, namely, whether the designated officer can be required to rectify the list of voters for a division, if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area of the division, as for example, some voters in a particular house in a Census Block number falling in the division, though shown in the Electoral Roll as 67 such, are, through inadvertence, omitted to be included in the list of voters for the division.
It is not necessary for the purpose of the present appeal to decide this question, but we may point out that tall the election process has commenced by the issue of notice fixing the calendar of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters and bring the list of voters in conformity with the Electoral Roll.
But once the calendar of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect.
We, however, do not wish to express any final opinion on this point.
These were the reasons which weighed with us in making the order dated 2nd May, 1975 dismissing the appeal with costs and directing the Returning officer to complete the election before 10th June 1975 on the basis of the Electoral Roll in force on 7th December 1914.

summary:
Section 13 of the Karnataka Municipalities Act, 1964, provides that for the purpose of election of councillors of a town municipality at a general election the State Government shall, after previous publication by notification, determine, (a) the number of territorial divisions into which the municipality shall be divided.
(b) the extent of each territorial division; (c) the number of seats allotted to each territorial division.
and (d) the number of seats reserved for the Scheduled Castes and women.
Section 14 provides that the electoral roll of the State Legislative Assembly for the territorial area comprised in the division, shall be deemed to be the list of voters of such division Rule 75 of the Mysore Municipalities (Election of Councillors) Rules, 196 empowers the State Government to make such orders as it deems fit for ensuring that the elections are held in accordance with the provisions of the Act.
For holding a general election with respect to a town municipal council, the State Government issued the notification under section 13.
Thereafter the Returning officer issued a notice fixing the calendar of events for holding the election.
The list of voters for each division was prepared exactly according to the Electoral Roll, and kept open for inspection In the office of the municipal council.
A list of the contesting candidates was also published and the poll date was also fixed as January 10, 1975.
At that state it was found that some voters residing in the border of one division had been included in the voters ' list of an adjoining division and the State Government, in purported exercise of the power under r. 75, cancelled the calendar of events published by the Returning officer and directed a fresh preparation of the voters ' list as per the divisions notified.
In a writ petition filed by the respondents, who were residents of the town, the High Court held that the State Government had no power to cancel the calendar of events and quashed the direction of the State Government.
Dismissing the appeal to this Court, ^ HELD: (1) What is required by section 14(1) is that the list of voters of a division should correspond ipsissima verba with the Electoral Roll for the territorial area included in the division.
of there is any mistake in the Electoral Roll in the some voters residing in one area or house number are shown as residing in another, it cannot be corrected by the Returning officer while preparing the list of voters for that division.
The only way in which such mistake can be corrected is by applying for rectification of the Electoral Roll under section 22 of the Representation of the People Act, 1950, but of such rectification is not made the entries in the Electoral Roll would stand and they would necessarily be reflected in the list of voters for the division.
But that would not constitute a mistake so far as the preparation of the list of voters for the division is concerned.
It is only if the list of voters for the division does not correspond" with the concerned Electoral Roll in the sense that the voters shown in the Electoral Roll as residing in the territorial are omitted to be included in the list of voters of that division or voters shown In the Electoral Roll as residing in the territorial area of one division are included in the list of voters of another.
that it can be said that the List is defective and not in accordance with the provisions of the Act [64D H] 58 (2) The scheme of the Act and particularly sections 14 and 15 show that it is only one list of voters that is contemplated to be in force during the entire process of election, and there is no question of correcting the list of voters according to the revised Electoral Roll which had come into being in February, 1975.
[65G H] The list of voters is to be prepared for the election tnd 'election ' means the entire process consisting of the several stages and embracing the several steps by which an elected member is returned.
[65H] Section 14(1) does not contemplate a list of voters which keeps on changing from time to time during the election process.
It deems the Electoral Roll for the territorial area of the division in force at the relevant time to be the list of voters for the division for the purposes of the Act that is, for the purposes of the 'election '.
Section 14(3) enacts that every person whose name is in the list of voters referred to in sub section
(1) shall be qualified to vote at the election of a member for the division to which such list pertains.
Section 15 (2) also says that the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or not qualified to vote or to be elected.
The sub sections refer to the same list of voters and it is, therefore, clear that the legislature did not intend that the list of voters should change from time to time during the process of election and the relevant Electoral Roll for the purpose of preparation of the list of voters must consequently be taken to be the Electoral Roll in force at the date when the election process commenced, that is when the calendar of events was published.
[66A F] Chief Commissioner, Ajmer vs Radhey Shyam Dani, ; , explained .
N. P. Ponnuswami vs Returning officer, Namakkal Constituency & Ors, ; , followed Shivappa Chanamallappa jogendra vs Basavannappa Gadlappa Bankar, [1965] Mysore L.J. 289.
approved.
Obiter: Till the election process has commenced by the issue of a notice fixing the calendar of events.
there is no reason why the designed officer should not be entitled to rectify the list of voters for a division if it can be shown that the list of voters does not correspond exactly with the Electoral Roll for the territorial area and bring the list of voters in conformity with the Electoral Roll, but once the calendar of events is published and the election process has begun it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect.
[67 C]


judgement:
Civil Appeal No. 185 of 1973.
Appeal by special leave from the judgment and order dated the 25th April, 1972 of the Calcutta High Court in Second Appeal being appeal No. 859 of 1969.
Sachendra Chowdhary, section K. Dholakia and R. C. Bhatia for the appellant.
P. Chatterjee and Rathim Das, for the respondent.
The Judgment of the Court was delivered by Goswami, J.
In this appeal by special leave directed against the Judgment of the Calcutta High Court the only question that arises for 106 consideration is whether the respondent is a thika tenant under section 2(5) of the Calcutta Thika Tenancy Act 1949.
On June 1, 1956, the predecessor in interest of the appellants (the latter, hereinafter to be described as the landlord) gave the land with which we are concerned in this appeal to the respondent (hereinafter to be described as the tenant) for occupation as a tenant on a monthly rent of Rs. 75/ for one year.
One of the conditions of the tenancy was that "the premises shall not be used for any purpose other than keeping of the lorries as garage." Another condition of the tenancy was that "the lessee will on the expiration of one year peacefully surrender and yield up vacant possession to the lessor.
" on July 29, 1958, the landlord 's advocate sent a notice of eviction to the tenant to vacate and deliver possession of the land on the expire of August 1958.
The tenant through his advocate by a letter of August 29, 1958, denied liability for eviction asserting that there was no violation of any terms and conditions of the tenancy and since there was refusal to accept the rent by the landlord the tenant had been depositing the rent every month from March 1958 under the provisions of the Calcutta Thika Tenancy Act 1949 (briefly the Act) by which the tenancy was claimed to be governed.
Thereafter a suit was filed by the landlord in the court of the 4th Munsif at Alipore on January 15, 1959.
It is not necessary to trace the history of the litigation covering this long period.
it is sufficient to state that the High Court by its judgment on April 25, 1972, allowed the tenant 's second appeal holding that he is a thika tenant within the meaning of section 2(5) of the Act.
According to the High Court the tenant does not require any consent of the landlord to erect a structure on the land.
The result was that the court of Munsif had no jurisdiction to entertain the suit, the matter being within the cognizance of the Controller appointed under the Act: Mr. Sachin Chowdhary appearing on behalf of the appellants fairly and, if we may say so, rightly confined his argument to the principal question of law as set out above Is the tenant a thika tenant under the Act ? If the answer is yes, the landlord is out of court.
Before we proceed further we may briefly note that the tenant constructed certain structures on the land prior to the institution of the suit in 1959.
Mr. Chowdhary, however, drew our attention to an observation in the judgment of the High Court to the effect that "admittedly the defendant (respondent herein) at his own cost constructed in 1962 structures upon the bare land which he took for the purpose of his business." Since the year of construction had not been particularly agitated in the courts below and there is evidence to show that the construction had commenced from 1957, we are not prepared to give undue importance to this observation about the year of construction mentioned in the judgment.
This is particularly so in view of the fact that the tenant through his lawyer in reply to the notice of eviction asserted in August 1958 that 107 "my client has constructed the structures and has done such other things as are needful for the purpose of the keep in lorries and other vehicles in the garages and making of necessary repairs of the same as well as upkeep and main tenance of the same for carrying on his business in transport service ." Further, even so, although there is a reference to this reply of the advocate of August 29, 1958, in para 8 of the plaint, there is no denial of the construction of the structures as asserted in the said reply.
Being: faced with this factual position Mr. Chowdhary strenuously contended that under section 2(5) of the Act erection of structures by the tenant must be with the permission of the landlord.
In other words, says Mr. Chowdhary the erection should be lawfully done and if the tenant does not establish permission or consent of the landlord in the matter there is no erection in the eye of law within the meaning of section: 2(5) .
We will, therefore, read that section.
2(5): " 'thika tenant ' means any person who holds whether under a written lease or otherwise, land under another person, and is or but for a special contract would be liable to pay rent, at a monthly or at any other periodical rate, for that land to that another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors in interest of such person, but does not include a person . " As the definition shows (1) a thika tenant must be a person who holds land under another person; (2) it may be under a written lease or otherwise; (3) there is a liability to pay rent to the landlord but for a special contract to the contrary; and (4) he has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose.
The tenant here fulfils the requisite ingredients of the above definition clause.
There is no reference to landlord 's permission or consent for erection of structure by the tenant in the definition clause.
Mr. Chowdhary submits that it is implicit in the definition that in order to be lawful erection of structure the tenant must take prior permission from the landlord.
Counsel further submits that whatever is silent in the Act should be supplemented by reference to the Transfer of Property 108 Act (briefly the T.P. Act).
In this context Mr. Chowdhary draws our attention to section 108(0) of the T.P. Act which may be set.
Out: "the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto." According to Mr. Chowdhary the purpose of the tenancy being that the premises shall not be used for any purpose other than keeping of lorries as garage, construction of structures for the purpose of running a workshop, which is the admitted factual position, would attract section 108(0) of the T.P. Act.
He, therefore, submits that the case is squarely governed by the provisions of the Transfer of Property Act and the court of Munsif had jurisdiction to entertain and decree the suit.
We may, however, note in passing that one of the grounds on which a thika tenant may be ejected under unmended section 3(ii) is that the tenant has used the land in a manner which renders it unfit for any of the purposes mentioned in clause (5) of section 2 or that he has broken a condition consistent with this Act on breach of which he is under the terms of the contract liable to be ejected.
We are unable to agree that the particular condition of the tenancy referred to by Mr. Chowdhary militates against the construction of structures and the use of the land for the purpose of workshop for maintenance of the lorries by the` tenant.
Without being too hypertechnical, ordinarily keeping of lorries as garage would connote the concept of construction of some structures for garaging the lorries.
The Chambers Dictionary gives the meaning of garage as "the building where motor vehicles are housed or tended.
" The Shorter oxford English Dictionary gives the meaning of garage as "a building for the storage or refitting of motor vehicles.
" We are, therefore, unable to accept the submission that even on the terms of the tenancy, as pointed out, the tenant has used the land for a purpose other than that for which it was leased to attract the inhibition of section 108(0) of the T.P. Act.
We are also unable to accede to the contention that section 2(5) of the Act requires a thika tenant under the law to secure prior permission of the landlord for erection of structures on the land.
As the preamble shows the Act is for making better provision relating to the law of landlord and tenant in respect of thika tenancies in Calcutta.
it is a piece of beneficial legislative conferring certain rights upon the tenants.
In dealing with such provision of law we cannot read into the definition some thing which is not already there and the introduction of which will lead to imposing a restriction upon the rights of this class of tenants by judicial interpretation.
This is not permissible in absence of express words to that effect or necessary manifest intendment.
Besides, we do not find any vagueness or uncertainty.
in the definition clause.
The submission is, therefore, of no avail.
109 We are not required to deal with the question whether the structures which stand on the land are permanent or not as this point had not been agitated in the courts below.
But we may in passing notice that in view of section 108(p) of the T.P. Act since the lessee must not, without the lessor 's consent, erect on the property any permanent structure, except for agricultural purposes, the State Legislature has by amending the Act by Act No. 29 of 1969 inserted section 10A conferring a right upon a thika tenant to erect a pucca structure for a residential purpose with the previous permission of the Controller.
We are, however, not required to consider such a question in this appeal.
Mr. Chowdhary also relied upon a contemporaneous letter written by the landlord to the tenant on June 1, 1956, which was found by the courts below to contain interpolation by the tenant with regard to the according of permission to construct structures on the land.
We however, do not think that this would have any bearing on our.
interpretation of section 2(5) .
In the result the appeal fails and is dismissed with costs.
P.H.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
In 1956, the landlord let out for one year the land in question to the tenant on a monthly rent of Rs. 75/ .
One of the conditions of the tenancy was that the promises should not be used for any purpose other than the keeping of the lorries as garage.
The landlord asked the tenant to vacate by a not to quit.
the landlord filed a suit for eviction which was resisted by the tenant on the ground that he was a Thika tenant under Calcutta Thika Tenant, 1949.
The High Court held that the tenant was a Thika tenant.
The definition of a Thika tenant is a tenant who has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors in interest of such person.
Admittedly, in the present case the tenant has erected a structure.
The counsel for the appellant landlord contents that since the structure was erected by the tenant without the permission or the landlord it is not a lawful erection of structure.
The Thika Tenancy Act does not talk about the consent of the landlord.
The Court, therefore, must look "t the Transfer of Property Act where section 108(o) prohibits the premises to be used for any purpose other than the one for which it is let out.
According to the appellant, the premises were let out for garage and, therefore the erection of ' structures for the purpose of running the workshop would attract section 108(o) of the Transfer of Property Act.
^ HELD: Negativing the contention of the appellant, The tenancy in question does not militate against the construction of structures and use of the land for the purpose of workshop for maintenance of lorries by the tenant.
A garage is a building where motor vehicles are housed.
The tenant has not used the land for purpose other than the purpose for which it was leased.
S.2(5) of the Act does not require a Thika Tenant to secure prior permission of the landlord for erection of structures on the land.
As the preamble shows the Act is for making better provision relating to the law of land lord and tenant in respect of Thika tenancies.
It is a piece of beneficial legislation Conferring certain rights upon the tenants.
in dealing with such a provision of law we cannot read into the definition something which is not already there and the introduction of which will lead to imposing a restriction upon the rights of this class of tenants by judicial interpretation.
Besides, there is no vagueness or uncertainty in the definition clause.
[108 E H]


judgement:
Civil Appeal No. 1588 of 1974.
Appeal by special leave from the Judgment and order dated the 9th July, 1973 of the Madhya Pradesh High Court in Misc.
Petition No. 163/73.
L M. Singhvi and section K. Dhingra, for the appellant.
section C. Manchanda, Urmila Kapoor and Kamlesh Bansal, for respondent.
The Judgment of the Court was delivered by ALAGIRISWAMI,J.
This appeal raises the question of the validity of the appointment of the appellant as a Professor of Zoology in the University of Saugar.
In pursuance of an advertisement dated 31 5 1971 by the University calling for applications for the post of Professor of Zoology five persons including the appellant and the respondent applied.
A Committee of Selection was constituted in accordance with section 47 A of the Saugar University Act 1946 to consider these applications.
On 4 12 1971 the Selection Committee recommended the name of the appellant to the Executive Council, which was competent to make the appointment.
Under the provisions of section 47 A the Executive Council has to take the final selection from among persons recommended by the Selection Committee.
But where the Executive Council proposes to make appointment otherwise than in accordance with the order of merit arranged by the committee the Executive Council should record its reasons in writing and submit its proposal for the sanction of the Chancellor.
In the present case the appellant being the only person whose name had been recommended had ordinarily to be appointed.
The Executive Council, however, refused to accept the recommendation of the Selection Committee on the ground that it would lead to administrative and disciplinary complications.
Thereupon the appellant filed a writ petition for quashing the resolution of the Executive Council and it was quashed by the High Court of Madhya Pradesh.
Thereafter on 18 2 1973 the Executive Council appointed the appellant as Professor of Zoology.
On 9 7 1973 the respondent filed a writ petition for quashing the appellant 's appointment.
The High Court of Madhya Pradesh quashed the resolution dated 18 2 1973 appointing the appellant as Professor of Zoology and indicated that the University may advertise the post afresh if they desire to fill in the vacancy.
The ground on which the resolution was quashed was that the appointment was made more than a year after the re commendation of the Selection Committee was made and this was not 150 permissible.
The High Court relied upon the statute 2 l AA of the Statutes of the University made under s.31 (aa) of the Act for this conclusion.
This section enables statutes to be made, among other things, for the mode of appointment of teachers of the University paid by the University.
The statute in question reads as follows: "Statute, No. 21 AA" (1) All vacancies in teaching posts of the University (except those to be filled by promotion as provided for under sub section (aaa) of Section 31 ) shall be duly advertised and all applications will be placed before the Committee of Selection as provided for under Sub Section (2) of Section 47 A of the University of Saugar Amendment Act, 1965.
(2) If no appointment is made to a post within one year from the date of the nomination by the Selection Committee then the post shall be readvertised before making an appointment as provided for under (1) above." Quite clearly the appointment made more than a year after the date of nomination by the Selection Committee is not in accordance with the statute 21 AA.
The requirement of the statute is that the post should be readvertised before making an appointment if the appointment is not made within a year of the Selection Committee 's recommendation.
On behalf of the appellant it was argued that the statute is directory and not mandatory, that in any case the statute is beyond the rule making power conferred by section 31(aa).
A number of decisions were relied upon in support of the submission that where a provision of law lays down a period within which a public body should perform any function, that provision is merely directory and not mandatory.
The question whether a particular provision of a statute is directory or mandatory might well arise in a case where merely a period is specified for performing a duty but the consequences of not performing the duty within that period are not mentioned.
In this case clearly the statute provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof.
This proceeds on the basis that if the post is not filled within a year from the date of the nomination by the Selection Committee the post should be readvertised.
So unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannot be said to be valid.
Though the reason for the delay in making the appointment was the wrongful refusal of the Executive Council to act in pursuance of the recommendation of the Selection Committee and the pendency of the writ petition filed by the appellant in the High Court, that does not in any way minimise the effect of sub rule (2) of statute No. 21 AA.
The position may well have been otherwise if there had been a stay 151 or direction prohibiting the Executive Council from making the appointment.
Such is not the case here.
We do not therefore think it necessary to discuss the various decisions relied upon by the appellant.
Nor can we agree that the statute in question is beyond the rule making power.
Under section 31(aa) statutes can be made with regard to the mode of appointment of teachers of the University.
The statute provides that the appointment should be made after the post is advertised and the applications received considered by a committee of selection.
It also provides that if no appointment is made to the post with in one year from the date of nomination by the selection committee The post shall be readvertised.
The rule therefore certainly relates to the mode of appointment.
It cannot be said to be unrelated to the mode of appointment.
It apparently proceeds on the basis that after the lapse of a year there may be more men to choose from.
Unless it could be said that the rule has no relation to the power conferred by the rule making power it cannot be said to be beyond the rule making power.
Such is not the position here.
We are also unable to agree that the statute is in conflict with or ill derogation of the provisions of the statute.
It was then argued on behalf of the appellant that the post of the Professor of Zoology is not a public office and therefore a writ of quo warranto cannot be issued.
The decisions in Dr. P. section Venkataswamv v University of Mysore(1) and section B. Ray vs P. N Banerjee(2) were relied upon to contend that the post in question is not a public office and therefore no writ of quo warranto can issue.
But it should be noticed that no writ of quo warranto was issued in this case.
What was issued was a writ of certiorari as the order of the High Court only quashed the resolution of the Executive Council dated 18 2 1973.
In his petition the respondent had asked for (1) a writ of certiorari, (2) a writ of mandamus, and (3) a writ of quo warranto.
What was assumed was a writ of certiorari.
The question whether a writ of quo warranto could issue in the circumstances of this case and whether the office was a public office was not raised or argued before the High Court.
Indeed it was not even raised in the special leave petition filed by the appellant.
We cannot therefore decide the present appeal on the basis that was issued was a writ of quo warranto.
It should also be noticed that the post has since been readvertised and it is open to the appellant to apply again.
We see no merits in this appeal and it is accordingly dismissed.
But in the circumstances of the case there will be no order as to costs.
V.M.K. Appeal dismissed.

summary:
In pursuance of an adevertisement dated 31 5 1971 by the University of Saugar calling for applications for the post of Professor of Zoology, five persons including the appellant and the respondent applied.
The Selection Committee constituted in accordance with section 47 A of the Saugar University Act 1946 for considering these applications recommended on 4 12 1971 the name of the appellant to the Executive Council, which was competent to make the appointment.
The Executive Council refused to accept the recommendations of the Selection Committee on the ground that it would lead to administrative and disciplinary complications.
Thereupon the appellant filed a writ petition for quashing the resolution of the Executive Council and it was Quashed by the High Court of Madhya Pradesh.
Thereafter on 18 2 1973 the Executive Council appointed the appellant as Professor of Zoology.
On 9 7 1973 the respondent filed a writ petition for quashing the appellants appointment.
The High Court of Madhya Pradesh quashed the resolution dated 18 2 1973 appointing the appellant as Professor of Zoology and indicated that the University may advertise the post a fresh if they desire to fill in the vacancy.
The ground on which the resolution was quashed was that the appointment was made more than a year after the recommendation of the Selection Committee was made and this was not permissible.
The High Court relied upon the Statutes of the University made under section 31(aa) of the Act for this conclusion.
Section 31 (aa) enables statutes to be made among other things, for the mode of appointment of teachers of the University paid by the University.
The requirement of sub rule (2) of statute No. 21 AA is that the post should be readvertised before making an appointment if the appointment is not made within a year of the Section Committee 's recommendation.
In this appeal by special leave it was contended for the appellant that (i) the statute is directory and not mandatory, and (ii) that, in any case, the statute is beyond the rule making power conferred by section 31(aa).
Rejecting the contentions and dismissing the appeal, ^ HELD : The question whether a particular provision of a statute is directory or mandatory might arise in a case where merely a period is specified for performing a duty but the consequences of not performing the duty within that period are not mentioned.
In this case, the statute clearly provides for the contingency of the duty not being performed within the period fixed by the statute and the consequence thereof.
Unless the post is readvertised and an appointment is made from among those persons who apply in response to the readvertisement the appointment cannot be said to be valid.
Though the reason for the delay in making the appointment was the wrongful refusal of the Executive Council to act in pursuance of the recommendation of the Selection Committee and the pendency of the writ petition filed by the appellant in the High Court that does not in any way minimise the effect of sub rule (2) of statute No. 21 AA.
[150F H] (ii) Unless it could be said that the rule has no relation to the power conferred by the rule making power it cannot be said to be beyond the rule making power.
The statute provides that the appointment should be made after the post 149 is advertised and the applications received considered by a committee of selection.
It also provides that if no appointment is made to the post within one year from the date of nomination by the selection committee the post shall be readvertised.
The rule therefore certainly relates to the mode of appointment.
It cannot be said to be unrelated to the mode of appointment.[151A C] Dr. P. section Venkataswamy vs University of Mysore A.I.R. and S.B. Ray vs P.N. Banerjee, , referred to.